TRANSCRIPT OF PROCEEDINGS
U.S. ENVIRONMENTAL PROTECTION AGENCY
MEETING OF THE NEW SOURCE REVIEW (NSR)
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CLEAN AIR ACT ADVISORY COMMITTEE
July 21, 1993
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TRANSCRIPT OF PROCEEDINGS
U.S. ENVIRONMENTAL PROTECTION AGENCY
MEETING OF THE NEW SOURCE REVIEW (NSR)
REFORM SUBCOMMITTEE OF THE
CLEAN AIR ACT ADVISORY COMMITTEE
Durham Omni Hotel,
Durham, NC
July 21, 1993
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TRANSCRIPT OF PROCEEDINGS
U.S. ENVIRONMENTAL PROTECTION AGENCY
MEETING OF THE NEW SOURCE REVIEW (NSR)
REFORM SUBCOMMITTEE OF THE
CLEAN AIR ACT ADVISORY COMMITTEE
Durham Omni Hotel,
Durham, NC
July 21. 1993
County Court Reporters, Inc.
Registered Professional Reporters
Certified Video Technicians
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NEW SOURCE REVIEW
REFORM SUBCOMMITTEE MEETING
July 21.1993
MS. WEGMAN: I just want to thank everybody for being here to
participate in the subcommittee. I know it takes some time from
everybody, and we are very appreciative of your willingness to take the
time to work on these issues with us.
As you all know, this is the first meeting of our NSR Reform
Subcommittee, either the Subcommittee of the Clean Air Act Advisory,
established for the purpose of providing policy and technical advice to
EPA on New Source Review issues, including environmental, economic,
technical, social, and policy questions that may arise, the whole gamut
of issues concerning New Source Review.
It is our goal to reach consensus on as many issues as we possibly
can, and we hope that, toward that end, everybody will try to focus on
particular issues and not talk too generally about New Source Review.
We feel that the most progress will be made if we can focus on
particular issues and, as Dave Solomon has said, takes bites of the
apple rather than trying to swallow the thing whole.
In that regard, we have structured the agenda to try to focus on
particular issues. As you probably have all seen from the agenda, we
are going to start out this morning with a couple of presentations.
Andrea Bear Field has provided, for example, concerns related to Class
I, and we will ask her to walk through it, and I think Rich Fisher from
the Federal Land Management Group will present something, and Pam
Faggert from Virginia will also make a presentation.
Then we will move into particular issues that have been
previously identified, and there will be opportunities to identify
additional issues if people feel there is something we don't have on our
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For the afternoon session, we will try to have a focused discussion
on the issues that we have identified. We will try to do some of that
this morning if we get through the issue identification process.
I am the EPA co-chair for this, and Pat Raher, kindly agreed to
be the other co-chair of the group, and we will share our duties. I am
going to have to be in and out of this meeting, unfortunately. Dave
Solomon will pick up on my job as co-chair for EPA when I am not
here, and that will be true for all the meetings of the subcommittee.
I think it would be worth it to go around the room and just let
everybody introduce themselves. I think, although we have the name
cards, it might be useful for people to state their names. We are still
missing people who we hope will show up. So, why don't we just go
around quickly?
MR. RAHER: I am Patrick Raher with Hogan & Hartson.
MR. SOLOMON: Dave Solomon, US-EPA, MD-15.
MR. TYNDALL: I am Bill Tyndall, Office of Policy Analysis and
Review.
MS. PATTON: Vicki Patton, Office of General Counsel at EPA.
MR. KATAOKA: Mark Kataoka, also at the EPA Office of
General Counsel.
MR. BUNYAK: John Bunyak, National Park Service.
MS. BANKOFF: Barbara Bankoff with Siemens Corporation.
MS. SHAVER: Chris Shaver, Environmental Defense Fund.
MS. BOOMHOWER: Alice Boomhower, representing Amoco
Corporation.
MR. THEILER: Don Theiler with the Wisconsin Department of
Natural Resources.
MS. RITTS: Leslie Ritts, Chadborne and Parke.
MR. MENEBROKER: Ray Menebroker, California Air Resources
Board.
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MR. HAWKINS: Dave Hawkins, NRDC.
MS. FAGGERT: Pam Faggert, Virginia Department of
Environmental Quality.
MR. WORLEY: Gregg Worley with EPA Region IV.
MR. ZBUR: Rick Zbur, Latham & Watkins.
MR. FISHER: Rich Fisher with the U.S. Forest Service.
MR. VAN MERSBERGEN: Ron Van Mersbergen with EPA
Region V.
MR. PEDERSEN: Bill Pedersen, Perkins Coie.
MR. PAUL: John Paul with the Regional Air Pollution Control
Agency, Dayton, Ohio.
MR. CARR: David Carr with the Southern Environmental Law
Center.
MS. BEAR FIELD: Andrea Bear Field with Hunton and Williams,
on behalf of the Utility Air Regulatory group.
MR. AMAR: Praveen Amar with NESCAUM.
MS. MCINTIRE: Vivian Mclntire, Eastman Chemical Company.
MR. LAMASON: Bill Lamason, New Source Review Section.
MR. LILLIS: Ed Lillis from the Office of Air Quality Planning
and Standards at EPA.
MS. WEGMAN: And assorted members of EPA staff behind me
and members of the public, of course.
EPA staff are here in large numbers, as you can see, and the main
purpose of the staff folks is to provide any assistance and answer your
questions concerning the way our policies have worked in the past, any
information that we may have to add to the understanding of the group.
We are not here so much to participate and ballot a particular
position. I think that the real success of this group is going to depend
on all of you folks since we are looking for your assistance in trying to
figure out how to make this program work more effectively for
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A couple of other things I just want to mention before we get
started. We had a meeting in June talking about pollution control
projects, and at this point, we are still debating among ourselves how
to proceed on those issues. We are still looking at whether it makes
sense to have policy guidance memos or regulatory action on that, and
we are hoping that whatever solutions we devise for that will in some
way resolve some of the WEPCO litigation.
So, we are trying to fit those two together as best we can, and we
will probably return to this group when we have a better idea of how
the numbers meet, but we have not sorted that out yet.
We are working on options concerning PSD pre-construction
monitoring, and that may come up today as part of the discussion of
Class I. If not, we will have a fuller discussion of it at our next
meeting which I will get to in a moment.
One thing that we thought, Pat and I thought and EPA folks when
we were talking about this, is that we might consider trying to have
subgroups break out of this larger group, not in the two-day meeting
we have today but possibly after that meeting, to identify particular
issues where we feel that further discussion would be useful and
further flushing out of what the impact of particular decisions might
be.
We had thought that what we might do if people identify issues
where they think that would be useful is to have such meetings over the
next couple of months. I know that we have talked about this before.
The environmental groups have expressed concern about their ability
to participate in too many of these things, but we thought it still might
be useful to have some subgroups of maybe three or four or five people
focus on particular issues and then report back to the full
subcommittee at our next meeting.
So, I would ask that as we go through the discussions over the
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this as well...whether there are particular issues where some more
thought might be useful outside of the full group and have a small
group report back. At the end of the day tomorrow, we can consider
that and see what subgroups people might be interested in forming, if
any.
At this point, we are thinking about the next meeting of the
subcommittee occurring in late September. Bill Lamason and Larry
Elmore have been doing some leg work, and they are looking at the
week of September 27th through the 30th, not all those days, probably
only a two-day meeting. We might, again tomorrow, just kind of check
in with everybody and see if that makes sense.
Either we could focus on a discussion coming out of today's or
tomorrow's meeting and have additional discussion of Class I BACT
issues and, if we do have subgroups, have the subgroups report back,
or, and/or we could have a discussion of applicability issues which we
have kept off today's agenda and we certain want to get to.
So, I think that if we do another two-day meeting which is what
we were thinking of, we might spend one day on applicability and one
day of follow-up to today's and tomorrow's meeting, depending on what
comes out of these two days. So, I would like you all to just think
about that and, again, to kind of take a poll around the room at the
end of tomorrow.
Just so you know, we do have a draft summary of the March
workshop meeting on our TTN, and it will be finalized on the TTN
shortly, and we will soon have the draft summary of the June meeting
as well.
Today's and tomorrow's meeting is being recorded, and we will
have a transcript available. We have our reporters back here. So, we
will not be preparing a summary. We will just have a transcript of the
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I think those are the main things I wanted to mention. Pat,
anything you wanted to add before we get started?
Oh, one other thing I should mention. This is a public meeting,
as you are probably all aware, and we will have opportunities for
public comment. What we have on the agenda right now is 15 minutes
at the end of the morning session and 15 minutes at the end of the
afternoon session for both days. If that proves not to be sufficient, we
can provide further time, but we will be providing that opportunity.
I guess, Andy, do you want to start off? I think everybody has the
paper that Andy produced in their packets.
MS. BEAR FIELD: Lydia, I do not know, if example, if it would
be appropriate to start off with some facts, so I put together one of
the Class I areas, I thought we would start it, 8:30 in morning, we
would be here at 8:35, having reached an impasse, so I am not quite
sure how to go about. There are some examples for tomorrow on
BACT, that I think are constructive and useful and would not lead to
breakdown in discussion.
On the one on Class I areas, what we did, and this is based on
discussions with some other people who are here at the meeting today,
was put together a basic summary of general principles based on the
experiences that industries have had in trying to locate a new facility
anywhere near a Class I area.
Lands which are near a supply source, because one can locate 10
kilometers or more from a Class I area and be determined to be near
a Class I area.
What we did was we set up a general study of principles, starting
out with what we believe the statutory requirements are, what the
obligations of the individual participants in that process are, and then
we asked certain questions.
What we said was that the Clean Air Act provides that the
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responsibility for management of any lands within the Class I area has
an affirmative responsibility to protect the air quality related values,
including visibility, of the lands within that Class I area. In fulfillment
of that responsibility, the Federal official is directed to notify the
permitting authority if a proposed source contributes to a change in air
quality that potentially causes an adverse impact on air quality related
values.
The Act further provides that a source with BACT that does not
cause or contribute to a violation of the ambient standards should get
a PSD permit unless the permitting authority concludes that the
Federal Land Manager has demonstrated that the source under review
either (1) will cause or contribute to the exceedance of an increment
within the Class I area; or (2) will have an adverse impact on air
quality related values within the Class I area.
We interpret these statutory provisions as calling for the use of
reliable modeling methods on significant sources to determine whether
such sources either (1) will cause or contribute to the exceedance of
an increment within the Class I area; or (2) will have an adverse
impact on air quality related values within the Class I area.
We also interpret the above statutory directive as establishing
limits on the nature and extent of Federal Land Manager concerns that
can legitimately be addressed by the PSD permitting program. In other
words, we believe that the PSD permitting process does not give the
Federal Land Managers or EPA the authority to ask the States or
individual PSD permit applicants to exceed Federal Clean Air Act
requirements, for example, Federal officials cannot ask for controls on
existing sources because of their impacts on air quality related values
except as authored under the visibility protection program of Section
169A of the Act.
Having set that out, I recognize that that sets the battlelines in
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going to reach agreement on today. I think it is fair to say that the
industry groups say there are statutory limits on what you can do in the
New Source permitting process to solve existing source problems. If
there are problems in Class I areas caused by pollutants, you may not
hold a PSD permit applicant hostage to that.
I don't know that Chris Shaver and I sitting here are going to
come to an agreement on this. On the other hand, there are issues that
are related to this that we may be able to reach some agreement on,
and those issues really concern ways in which you can try and remove
from this system certain sources that come for PSD review, and maybe
that is what we ought to be focusing on.
There have got to be sources that are small enough or located far
enough from Class I areas that they shouldn't have to go through this
process. We would argue that there are sources closer that should not
have to go though this process, but we would hope that we could come
up with some parameters so that you know going in whether your
particular facility is one that is covered process or not.
As I was saying to Larry Elmore earlier today, people don't go in
and say gee, I want to build in a Class I area because wouldn't it be
great to open the windows and the curtains of my office and look out
at the great view. You know going in that if you are building near a
Class I area, you have got more headaches than you can possibly deal
with.
So, there are other reasons why you do this, other locational
reasons why you need this, and there have to be some guidelines. The
concern that we have is that there seems to be no cut-off. To locate
700 kilometers away in a model, which is the area of impact, less than
700... Should that be one that does not have to go through this type
of review? Shouldn't there be cutoffs below which you shouldn't have
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MR. TYNDALL: Andy, can I ask a clarifying question on this?
On the issue you described is pretty much worked over, I guess the one
question I would have? Are you saying that if there is adverse timing,
adverse impact that there is no legal authority or power of a permitting
agency to do anything other than to require what is set forth in this
thing BACT and...?
MS. BEAR FIELD: Well, if my source is one that I am trying to
get a PSD permit for, it will have an adverse impact. On air quality
related values in Class I, where AFD is supposed to be, as opposed to
getting a PSD permit.
The problem...maybe we should just go through a series of
examples we have to try to focus in on our concern. At the bottom of
page 4 of this particular hypothetical, the examples put together are
designed to determine if a consensus can be reached concerning the
extent of the authority of Federal officials to argue that emissions
from a PSD permit applicant will have an adverse impact on air quality
related values within a Class I area and thus whether that facility
should receive a PSD permit.
In the first two cases here...now, I know these are idealized cases
and defining that type of facility, just deforms the issue. In the first
two cases, emissions from a proposed new source reach a Class I area
where there is no pollution from existing sources. Let's assume for the
first two hypotheticals that emissions from the proposed source seeking
a PSD permit will not have an adverse impact within that Class I area.
Should the proposed source get the PSD permit? In other words,
no adverse impact exist in the area from existing sources. My new
source is not going to have an adverse impact. Should the source get
a permit?
We would say yes, that source should get a permit. We would
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pretty simple one and we should be able to reach consensus on that;
the policy on that seems easy. That was one of the easy ones.
The next one, assume that emissions from the proposed source
seeking the PSD permit will have an adverse impact within the Class
I area. Should the proposed source get a PSD permit?
We say no. That is the statutory test. If, regardless of the fact
that there is nothing else going, that source that I am seeking the PSD
permit for will have an adverse impact, statutory test, just to get the
permit, unless it reduces its emissions further and does whatever it
needs to do in order to eliminate that adverse impact.
In the next two cases, let's say the proposed source is seeking a
PSD permit near a Class I area where emissions from existing sources
are already having an adverse impact on the Class I area. Of course,
this is where it gets a little tricky, and this is where it gets more like
what you find around the country.
So, the existing sources are having an adverse impact in the Class
I area. Let's assume in this third hypothetical that emissions from the
new source seeking a PSD permit will, independent of existing source
pollution, that one new source seeking a permit will have an adverse
impact in the Class I area. Should the PSD permit applicant get the
PSD permit?
No, we don't think it should, because it by itself, it is having
adverse impact.
The final one, and this is the area that we think the discussion
ought to focus on, now assume that emissions from the proposed new
source will not alone have an adverse impact in that Class I areas, even
though the new source will contribute to but will not perceptibly
change the existing adverse impact in the Class I area. Should that
PSD permit applicant get the PSD permit?
We would argue that, in that case, if the new source will not itself
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and the fact that there are adverse impacts that may be in these Class
I area from existing sources should not hold up the PSD permitting of
that new source, that that is not how the statute is constructed.
That is where we think the discussion ought to be focused. We
recognize that perhaps of all those four hypotheticals I have given,
most of the debates all focus on this one. You are not going to find
any situations 1 and 2 very often, and if you run into 3, it is a much
clearer case.
This is the one where we want to focus, really focusing in on what
is the PSD permitting program designed to do. Is it designed to
address problems that exist from existing sources in a Class I area, or
are other statutory mechanisms designed to address the problems that
may already exist in a Class I area?
MS. WEGMAN: I would just like to mention that if people have
comments to make, it is easier to do the card routine, where people
turn their cards up on the bench like this, and that indicates that they
have a comment. David?
MR. SOLOMON: Nice to be able to clarify on how you want the
staff to have these; what would be your position on the cumulative of
any non-... source, if individual new sources might be added, you could
say the cumulative effect?
MS. BEAR FIELD: When I go back to the statute, I would in that
case go back to the statute, when one looks at the process that went
into writing some of these provisions, and then you are saying you do
not have..., let's try that.
There are parts of the statute, there is a part of the statute that
seems to address the meaning of the cumulative impacts, but that is the
part that says when you are looking at other, to see if these sources
will cause or contribute to violation of the ambient, you are looking a
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if other sources, standing in line, have, are inclined to, if you do get
cumulative impacts.
When I go to the next provision of the Clean Air Act which talks
about this will have an adverse impact, the language isn't the same.
It is not talking about cumulative impacts; it is talking about this one
new source seeking a PSD permit.
The drafters of the legislation seem to be making a distinction in
which there are different tests.
So, this is a violation of the increment and the ambient standards,
it is a violation. It doesn't matter whether you just put in this little
tiny bit or a whole bunch more, if there is a violation, that violation
has to be addressed before anything gets permitted.
But if there is not a violation of the increment, not a violation of
the ambient standards, then the test is will that new source seeking a
PSD permit have an adverse impact on the air quality related values
within the Class I area, not whether they are already there from
somebody else but will that new source seeking a permit have an
adverse impact. That is how we read the statute.
MS. FAGGERT: I would have to disagree with what you said
about an increment violation, the new source cannot get the permit.
In Virginia, it is proposed and EPA approved Class I significance
levels. I am probably getting ahead of what I am going to talk about
and it is on my handout, and we came up with significance levels, so if
there is abuse and a violation if the new source is below that level,
they can, in fact, be issued a permit.
MS. BEAR FIELD: I would agree with you on that one. I am
assuming that what you are talking about is the situation where you
have perceived levels of significance. I agree with you. Under the
significance levels, there ought not to be any prohibition, again.
MR. BUNYAK: One comment on that example that you have
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their emissions would contribute. I guess it all boils down to how do
you determine whether that source will not have an adverse impact?
I would argue the case where you are at the park has an existing,
adverse impact, and you will have a source that contributes to that, I
would say it is an adverse impact.
So, I don't tend to focusing, that a new source that are located
in that area and not have an adverse impact, in essence...
MS. BEAR FIELD: I think part of this comes down to we
probably ought to discuss what is an adverse impact and that is
probably a lot more than has been covered. You go in and you say,
this is a problem in a Class I area. There is damage to Y in the Class
I area, and this new source is coming in, and emissions are going to
reach the Class I area.
What does it mean to have an adverse impact? If you can show
in fact, this new source will have an adverse impact, I wouldn't
disagree with you. My problem is the models are not all that good, and
I would assume model would show that S02 (sulfur dioxide)
concentrations are going to reach 100 micrograms per cubic meter, but
the point where the models tend to show, should not be over be zero.
To say at that point that you are going to have an adverse impact
no matter even if it is that small, because it is widely dispersed. At
some point, I say there has got be a number below which if I show that
I am less than that number, the impact is zero. It is not going to be
stressing, going into reserve.
I don't know what that number is, but it is very frustrating when
you are trying to get a permit to find the number going lower and lower
and lower, and whatever somebody else had to meet, whatever test
someone had to meet before 1984, that is the starting point for the
next permit applicant in the PSD process.
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MS. SHAVER: There are probably numbers that make sense. I
would like to take a few. I think fundamentally I have a problem with
that; one thing I might agree with is, the current position within our
Class system for various,... not going and all we are doing is talking
about how are we going to be making a system that is more functional
and streamlined within the experiences of the current law which is
totally irrelevant to whether or not Class I areas are protected.
So, I start from a different place which is what questions we need
to bring about the kind of protection that is required in these areas;
Andy mentioned that there were other conditions of the Clean Air Act,
that was supposed to be doing things to take care of existing sources,
yet those are not doing that either. There really isn't any policy there
that is taking care of those problems.
So, how do we address what is the problem, and how do we tailor
a solution to the problem? As much as we may be constrained by
existing regulations and the law, I would hope that, in our discussion
today, we can think more creatively about how better to do this, in a
way that benefits everybody.
The other thing I would like to argue against is your statement of
the Congressional intent or will have means that each individual source
has to have an impact, and I guess I think that Congress has some
common sense about it, and it was not the overriding purpose of that
whole program was to try to prevent deterioration of those areas, and
you could not do that if you would perfectly will have, I mean if each
individual source could come in just below a detrimental impact and
then you could have hundreds of those doing that. There would be no
protection. So, it is a nonsensical kind of interpretation and you might
want to delete those, say there is some distinction there.
MR. RAHER: Chris raises a good point here. I think it is
probably one we need to be focusing on and putting some issues up on
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I think if we are going to have a chance to reach any consensus
here, as we have to realize, Chris, and we all have to realize that this
isn't a committee to redo the Clean Air Act, and we may have to
identify that there are certain things that can't be done.
For instance, the State representatives are here. SAMI is here
someplace, and, you know, States themselves, in these areas have far
greater control and ability to address this problem than the Federal
Government does for certainly New Source Review, but this is a New
Source Review issue. So, if we are looking at New Source Review
impacts, I think the charter here...we have got to do whatever building
you can.
We can't...Chris raises a good point. The major issue may
swallow up the whole program. I think our goal here is to try to
identify what we can do with the New Source Review program, albeit
small, albeit incremental, hopefully it will have a positive impact both
for those people building and for the Class I areas.
MR. CARR: Just to echo a few things that Chris said, the purpose
of the whole PSD program is to protect the Class I areas and other
resources and also to provide a permitting process. What we are
saying and recognizing is that if existing Class I areas already have
existing adverse impacts, despite what kind of model we have, it is very
difficult to tell what one source will do in a regional haze problem or
an existing adverse impact situation.
That is not to say that source doesn't have an adverse impact. It
is just that the ability to quantify that adverse impact is hard to get a
handle on, but that doesn't mean that just because you can't quantify
it or you can't model it, doesn't mean it doesn't have an adverse
impact.
If those steps in the problems, not being able to identify what
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adverse, we think that it has an adverse impact. That has to be dealt
with.
One way to deal with that is through an offset situation. The Act
does not specifically provide for that, but you can reduce existing
emissions on a par with the new emissions that are coming in and at
least assured that you are not adding to that adverse impact.
MR. RAHER: Dave Hawkins?
MR. HAWKINS: Just two points, also related to these Andy's
opening comments. I understood Andy to be making two points, one
a legal point, whether EPA permitting authority, has the legal
authority to reduce PSD permitting process to address adverse impacts
that are associated with the elimination of existing sources and new
sources the second. The policy point is that should EPA that use that
authority.
I don't propose to comment on the second at this point. I just
want to mention it to make sure that we do not forget to have that
discussion, we can have the legal discussion, but I think we also need
to move on to the policy discussion premised on an assumption that
EPA does have the actual legal authority, when we refer to that.
I don't think the textual citations that you referenced are very
powerful in terms of supporting the argument that it won't have an
adverse impact is some sort of a unitary test that focuses only on the
facility. Just as strong or stronger a textual argument could be made
drawn from the fact that these tests are coupled in the two provisions
of 165 that discuss them.
Cause or contribute to increment exceedence is one aspect of the
review and adverse impact is another aspect of the review, and they are
each coupled in the two relevant provisions where you can get the PSD
permit even though you cause or contribute to an exceedance of
increment, usually demonstrates that there is no adverse impact
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do not cause or contribute to the exceedence if you demonstrate that
there is an adverse impact.
I think the argument that you have to look in isolation, that the
concentration follows from the emissions from one facility and ignore
everything else, essentially would ignore the underlying reality of the
situation. The adverse impacts in the real world are, except in very
unusual certain situations, never caused by single facilities, but there
are adverse impacts.
If you are going to evaluate in the real world whether an adverse
impact is occurring, you cannot put blinders on and look only at the
individual facility. That is about as sensible as asking whether that
one pat of butter on tomorrow's muffin will have an adverse impact on
your cholesterol levels and, if it doesn't, then go ahead and use it, and
use the one the next day and the next day and the next day and the next
day. No single pat can be argued to cause or contribute to...or at least
cause by itself that elevated cholesterol level that your doctor is
worried about.
MR. RAHER: Bill, before I recognize you, I think that Andy
probably to address that issue and may help us focus a little bit to do
that, assuming that is what you want to do.
MS. BEAR FIELD: Yes, I want to generally respond to something
that Chris had said, I think to respond to Chris and then to David.
The statute, and Congress amended the Clean Air Act in 1990, it
did add other provisions to deal with existing source pollution. Maybe
I am speaking...with respect to the utilities, 8.5 million tons of S02 is
not a pat of butter. I mean, that is the tub of lard. That is a lot of
pollution. On NO x emissions, 2 million tons...mo re than 2 million tons
in parts of the country because of some of the contained areas, but you
don't need large reductions in pollution from sources many of which
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Also under Title III of the Act, you are going to get a lot of
pollutant reductions there because of limitations of the MACT
requirements. And I guess if we interpret the statute as saying that is
how Congress is going to deal with existing sources of pollution.
Granted, a lot of those reductions have not taken place yet, but
in the utility industry, you know that sulfur dioxide reductions, a lot
of them are starting to be, controls are going on, that they will be in
over the next two years for Phase I and, by the end of decade, Phase
II. That is how Congress intended to deal with existing sources of
pollution.
If that is not enough, if the ambient air standards can be used to
deal with pollution. There is also the visibility protection that goes
well beyond the limit that science allows additional rule making there.
So, we don't see it as well, let's just leave the existing sources to
kind of do what they are going to do, and we will just focus on new
sources. The one point is, Congress did that a mechanism to reduce
emissions from existing sources.
So, we interpret the PSD permitting provisions as saying those
other mechanisms are going to deal with existing sources, now let's
look at the new sources, and it is very frustrating that you look at some
of these new sources and, in fact, they are the cleanest, most
comprehensively controlled sources that you can imagine, and they are,
from the standpoint of utility sources, coming in with co-energy and
everything else.
There are to likely to replace sources that are also near Class I
areas having a much worse impact on those Class I areas. So, if you
are talking about offsets, those do occur, but what we run into is the
problem where you say well, I am not going to produce electricity with
this new source, right there in a Class I area, and that means another
source near Class I area will be not using as much electricity, and the
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reduce its emissions anyway because of Title IV of the Clean Air Act
or something else. We want offsets from something else, something
that would not otherwise have had to reduce emissions.
And we say but wait a minute, that is what Title IV is supposed
to do, reduce emissions from these existing sources. So, they are all
doing it. Why are you holding my new source, my well controlled,
highly controlled new source, hostage, in the PSD permitting process?
That is the problem we run into.
In response to David's comment on the statute, guess we read
those two provisions the same. In one case, it is a cumulative test, and
Congress used that language, to cause or contribute to cumulatively.
When you are talking about cumulative violation, part of the test.
The OPS permitting process in Class I areas has very small
increments if you are causing violation in this group, not just you
yourself but you in combination with everyone else who has come
there, minor sources, major sources that have already gotten PSD
permits, increases from existing sources, you may find the increases
there. If there are violations in the increment, then you have got to
deal with these violations in the increments. The States have
important obligations to do that.
If there are no violations of plant pollution, then you focus on
the source that is coming in seeking the PSD permit and determine
whether that source will itself have any adverse impact.
We think the statute makes the distinction there. Congress could
have used cause or contribute to in both places but didn't choose to do
so.
MR. RAHER: Let's go to Bill and then Dave and I think Lindy
had another presentation by one of the other FLM people. Bill?
MR.PEDERSEN: I want to echo what Andy said from a different
angle. The current practice of air quality related values in New Source
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really for no good policy reasons. I would like to address visibility
which is the premier air quality related value.
Something that hasn't been mentioned yet is that the parameters
of visibility protection were defined in 1980 by EPA regulations that
are still in effect, and those EPA regulations restricted visibility
review to isolated plumes.
In promulgating those regulations, EPA said about regional haze
that present mathematical models and monitoring techniques were not
available to address the regional haze problem at that time since they
must be further evaluated according to standard Agency procedures
before we can routinely require their use in a regulatory program for
sources either new or existing that may impair visibility.
Other parts of the regulation also confirm that this is the matrix
for a PSD New Source Review as well as for the 159(a) program. Even
within the context of isolated plumes, the regulation established a two-
part definition of adverse visibility impairment.
First, there has to be a perceptible reduction in visual range, and
then there it has to damage the value of the air quality. So, even
within the context of isolated plumes, we are far from above the
contribute test. We are at an individual source perceptual
contribution test.
This is not something that sits by itself in the EPA regulations.
Congress enacted the PSD program and required all models to be used
for the PSD program to be adopted through rulemaking procedures. It
didn't say increments assessment models ; it said all models.
The reason given for that was the absence of a specific road map
for how you quantify these things which would lead to confusion and
delay in the permitting process. Well, that is exactly what the failure
to observe those statutory guidelines is leading to in visibility and
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I would say that in addition to the legal is very dubious, I can't
see what is gained by this stretching. I can understand, the problem
is that any AQRV impairment, in part, is caused, by a major part, by
sources that will never go through New Source Review. So, you can
construct as good a system as David Hawkins wants, and you will still
not solve the problem.
It seems to me that this may end up being something like the
plant-wide emissions limit that we talked about in March, I guess,
where I think the consensus was that whatever its ups and downs might
be, it was an issue that would slow up the New Source Review reform
initiative.
I understand that Pat says about not reinventing the Clean Air
Act with these discussions, but apart from the legal points I have
made, New Source Review by itself is not going to solve these
problems, and by hitching the two together, we may really impede New
Source Review reform.
MR. RAHER: David?
MR. CARR: I would just like to say that is the fact that Congress
spoke to existing sources in 1990 does not relieve us of our duty to
implement the PSD program. The PSD program has a part of
protection of Class I areas Protection Provision relating to new
sources. So, you cannot get out of that just because Congress has
spoken to part of the problem without another set of the problems.
MR. RAHER: I think Rich Fisher is going to make a presentation
now with respect to the FLMs.
MR. FISHER: Thank you very much.
When I first came to the Washington office of the Forest Service,
and the air program was headquartered in the Washington office. This
may be a little logistically difficult a thing to do. I have slides and
overheads, so. ..plus I suppose I need to speak up. So,ifyoucan't hear
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briefly about three things, and I believe this will be a regression based
on what most of you know and some of you or maybe I should say for
most of you.
MR. RAHER: I might suggest, if it helps you, there is a
microphone up by the overhead projection, so you can at least stand
there.
MR. FISHER: I will move up there in a moment.
There are three things that I want to tell you. One is that I was
going to give you an overview, of particularly the Forest Service, of
course where I work; a little bit about the Forest Service, perhaps.
More importantly is what is at risk with regard to air pollution threats
on Class I areas and, in fact, all areas managed by the Forest Service,
and I speak as well for the Park Service, to a large extent, and finally
a few notes about New Source Review reform recommendations that I
might suggest.
All right, can you hear me? To begin with, I am going to ask that
the lights be turned down a little bit so you can see what is going on.
I have some handouts, Bill there is a brown folder over there and
if you could take them out. First of all, this will last about 15 minutes,
I think, and again, I represent the Washington office of the Forest
Service. We try to provide policy guidance to the people in our
national forest system. There are 158 national forests that manage 191
of your national forests, 176 million acres, let us see, 191 million acres
of national forest. I might remind you that 176 million acres of them
are Class II, 35 million acres are Wilderness, and 15 million acres are
Class I.
The Park Service also manages 48 Class I areas, all of them
national parks. 20 Fish and Wildlife Service areas are managed by that
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national park, as I think you all know, 4 of these recreational areas, at
my last count anyway, had become Class I.
Just to acquaint you a little bit with what you see out in the
national forests, let me focus a little bit. I don't think the focus is
working so well. Anybody who would like to help focus that, please
feel welcome.
Here we have the Hoover Wilderness, these are all Class I areas
that we manage and present for agreement on air pollution impacts and
other resource protection issues, the Glacier Peak Wilderness area in
Washington, the Bob Markey Wilderness in Montana, the West Elk
Wilderness in Colorado south of Aspen, and Little Bill... in Colorado.
In all these locations, by the way, we do have to have monitoring,
and I will show a little bit of that information to you in a moment.
If somebody could baby sit that thing back there, I will put on my
first overhead, and you can turn that off in a moment.
I did not mention that we handle a lot of Class I areas, and I
would like to call your attention to the fact that besides, here are laws
that help us manage these areas, besides, of course, the Clean Air Act,
there are lot of them which were involved when we were created, there
is also the Wilderness Act that gives us authority to manage some 35
million areas of Forest Service wilderness, and these, under the
Wilderness Act, have special protection, not specifically with regard
to air quality, it is not mentioned particularly in that piece of
legislation, but we do pay special attention to the use of those areas
with regard to air quality impact.
But importantly, there are two other pieces of legislation that do
mention air quality. One is the Forest and Rangeland Renewable
Resources Planning Act of 1974, it calls for us to provide fundamental
means to protect and improve air resources. This is specifically out of
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Later, a piece of legislation, the Federal Land Management Policy
Act of 1976, calls for protection of the quality of, among other things,
air and atmospheric values.
Because the Class I areas are special protectioned under Clean
Air, we focus much of our national efforts on them, but if you note on
the handout ...and I apologize I have only got 30 of them, so we will
have to share around. There are eight pages to that handout, and they
include some data on the Class I areas that we manage and the Park
Service and the Fish and Wildlife Service.
If you look on pages 1 to 3 though, there is the Forest Service
policy with regard to air resource management in the Forest Service,
and you can note there that there are three aspects to that. The first
one is the Class I area management, but we recognize that we have
stewardship responsibilities for all the national forests. Bring you
back to the fact that Class II areas are indeed important to us, and we
have established those criteria that you can read in there with regard
to our policy management of air resources on the Class II areas.
Of course, thirdly, we ourselves are emitters and try to minimize
to the extent ecologically possible smoke emissions from national
forests.
If you could turn the slide projector back on, please.
Nevertheless, accomplishing assessments in the Class I areas has been
somewhat difficult, particularly in wilderness areas where mechanized
equipment is prohibited. It has been difficult and cost, but
nevertheless, we have accomplished some monitoring and, in fact, view
that as one of our principal responsibilities, that is, to characterize the
condition of the national forests and the Class I areas.
I just want to give you a little bit of a rundown of the kind of
monitoring that we are doing in or near some of the Class I areas.
Most of you will recognize this camera equipment that operates in
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years, and here is some aerosol monitoring that is done adjacent to
perhaps 30 Class I areas.
We also are very active in monitoring the waters in these areas
for macro invertebrate and for water chemistry. We look at lake water
chemistry and benthic sampling as well. We collect snow water, for
instance, in high mountain areas where using other methods besides
this bulk collection method are prohibited.
We do typical acid deposition sampling, and we do, of course, the
biomonitoring sampling, and that is becoming more useful. We have
done a lot of work with lichens in trying to assess their utility as a
biomonitor.
This is a...you can turn off the slide projector, please. This has
allowed us to make some...a little bit of an assessment as to how
sensitive some of these areas are, but there is still a problem, because
the managers wanted to more information, or they wanted to make
decisions, I should say, need to make decisions in this process.
On the other hand, the scientists still didn't have enough
information about the health and vitality of these areas to feel
comfortable making decisions about or making recommendations on the
effects of air pollution on these areas.
Therefore, we have come up with a process to bring scientists and
managers together, and we call this an AQRV screening process.
Perhaps many of you have seen the documents that have been produced
by the Forest Service in collaboration with the scientific community,
academicians, the public at large, industry, all the environmental
groups. All groups have been invited to attend.
The purpose of these groups, these sessions, is to bring together
principally the scientists and the land managers but also other
interested parties to make informed decisions about acceptable levels
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These workshops, and there have been perhaps a dozen of them
held around the country over the past three or four years, have really
looked at three pollutants, ozone, sulfur, and nitrogen. The kind of
thing that we come up with are what has commonly now been called
red, green, and yellow values, and this is an example of the kind of
relationship that has been drawn for use by the Federal Land Manager
and by regulators in assessing the kind of impacts that might
potentially occur.
For instance, and this is only an example, you can come up with,
based on just the fundamental science aspects of many of these Class
I areas, the buffering capacity along the bottom. If you can't see that,
I will bring it up a little bit...buffering capacity of a particular aquatic
ecosystem.
We try to compute, then, the contribution by sources, a source or
a group of sources, along the side. It still requires some degree of
modeling, and then based on different runoff values, in this case, try
to estimate as a first guess whether or not the source or group of
sources is a threat to the Class I area or perhaps whether there is
already an existing problem.
This we call our red line right here, and the dashed line would be
our green line such that any impacts basically over in this area would
be acceptable and any impacts over here would be unacceptable.
We came up with this process because, you know, prior to five
years ago, it was very difficult for, I think, all of us to understand
exactly what an AQRV was, probably first of all, besides visibility and,
second of all, what an adverse impact to an AQRV was. This is our
attempt at answering that question.
It is, albeit a crude attempt, but it challenges the community,
both administrative lawyers, scientists, everybody to come up with a
better technique much as the modeling community has done in EPA.
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This information that we have gathered through the monitoring
process primarily has allowed us to make some statements about the
status of particularly the Class I areas that we manage, and I would
just like to go over with you a few of those impacts.
Here are some ozone symptoms to black cherry and to white pine,
and I apologize ...I think if you could bring the lights down a little bit
further, that would be really wonderful. Some white pine. Viburnum
will be in the next slide. These are all ozone symptoms, and these all
occur along the eastern front of the Appalachians. Flowering dogwood
ozone impacts and milkweed impacts.
These, by the way, were all take here in the last year and a half
or so along the eastern slope. These symptoms have occurred in
several species in the south and southwestern Virginia and West
Virginia, in the George Washington and Jefferson National Forests.
The NAPAP report, by the way, notes that red spruce in
particular is susceptible to ozone damage and my be undergoing
decline in connection with effects from drought, insect, and disease
impacts. So, it is not just air pollution that is causing the stress.
And we have the milkweed.
Now, I just want to run through, I think, quickly some examples
of impacts that are occurring other places in the country. In
southwestern Virginia, many of you are familiar with that, undoubtedly
as a result of recent permit applications, but sulfur deposition is,
indeed, occurring. It is occurring in many of the streams in the
Jefferson National Forest and the George Washington National Forest.
The degree of impact varies from one localized area to another,
but approximately 10 percent of the streams are acidic. 70 percent are
sensitive or extremely sensitive to acid deposition.
The St. Mary's River was added to the American Rivers list of the
15 most threatened rivers in April of '93. This is the first river added
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In this area, fish species have declined from 12 species in 1976 to
8 in 1988. The rainbow trout population has declined. The youngest
fish sampled each year have decreased most dramatically. The black-
nose dais population samples have decreased from 68 in 1976 to 1 in
1988.
A steady decline in the numbers and diversity of aquatic insect
species from 32 in 1936 to 17 in 1988. Acid sensitive mayfly genera
have disappeared, and acid tolerant stone fly and midge species have
increased in abundance.
Three streams in the George Washington National Forest are
limed to offset the acidic effects. Fridley Run is a stream in the
Massanutten Mountains which is an example of a native brook trout
stream that has acidified. No trout or other fish have been recorded
in these streams since the 1970s.
We have experienced two fish kills recently in an acid runoff
following record precipitation in the region just last year. In March
of 1993, the entire eastern United States experienced one of the
largest snowfalls, as I think we all recall, and when the snow melted
and more rain fell, the fish kills increased to the extent, to a large
extent, on two creeks, Little Passage Creek and Peters Mills Creek in
the Massanutten Mountains.
The Live Brook Wilderness in Vermont ...and I am expecting
everybody can point out these general locations on the map...has
severely limited the buffering capacity of ponds and streams due to
acid deposition. My belief is that this has reached what we call a red
line value. So, we have begun working with the sources that are
applying for permits in that area to try to reach some kind of offsetting
process.
Sulfur deposition and trace metals in the Pecos Wilderness in
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Mexico have occurred, although buffering is still available. There is
a shift to more tolerant diatoms in that area, sort of a warning to us.
Like the populations in the Sycamore Canyon area of Arizona and
the Superstition, Chiricahua, and Mazadal areas of Arizona also, they
are showing elevated sulfur concentrations of 2000 parts per million.
Of course, the consequences of this are really as yet unknown, another
warning sign perhaps, though.
Ozone is certainly the ubiquitous, most ubiquitous air pollutant
in the turbosphere which, along with other environmental stresses,
including drought, insects, disease, and deposition, most threaten
terrestrial ecosystems. We know that many flora species are sensitive
to ozone, as I showed you earlier, but the monitoring routinely
performed by States are not of the correct averaging time or dosage
response relationships or in the correct locations to adequately
characterize real doses. I will mention that a bit more in a minute.
Mercury poisoning of fish is occurring in the Boundary Waters
Canoe Area and in that vicinity of the country also, of course, outside
the wilderness. The source of this is certainly deposition of airborne
methyl mercury.
In this area, the Forest Service and other Government agencies
have warned lactating mothers and children not to eat certain
quantities of fish, depending on what lake they might come from, and
consumption limits do exist for other members of the population as
well out of that area.
Ozone has reduced the productivity of Jeffrey and other
Ponderosa pine forests in the L.A. basin and in nearby Sequoia
National Forest.
Finally, I think everybody is familiar with the visibility issue.
This is a picture of a plume crossing the Mount Zirkel Wilderness near
Steamboat Springs, Colorado. I think even with the amount of light we
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now underway with the likely source of that plume in order to try to
mitigate its impacts, but along with that, we have also noted
substantially elevated concentrations of sulfur in aquatic ecosystems
in and near the Mount Zirkel Wilderness Area.
Finally, there is the issue of regional haze. The Park Service
noted that there was regional haze effects in all the parks many years
ago, more than 10 years ago. We have not officially done that, but I
think unofficially and inform ally, we have said that we have seen
effects in virtually every wilderness area as well, of course, and I have
some of the typical good and ugly pictures, if the lights were turned
down a little bit more.
Here you can...well, here is Dolly Sods. I guess the lights can't
go down any further. Dolly Sods on a good day and on a poor day.
You see a pretty substantial loss in the visual range at least there.
Here we have Caney Creek in Arkansas. I guess I got those
backwards. Here is a good day, and then the other one was a bad day.
Here we have the San Gorgonia Wilderness. This is on the rim
of the L.A. Basin, and hold onto your hats, because this is what you see
on a bad day.
To conclude, I just want to mention a few things about...you can
turn the slide projector off. Just a few issues that we think are
important as far as research and new reform. Some of these are very
old issues, and we keep bringing them up over an over again, but I
think they bear repeating.
Improved notification. We still don't get notification of sources,
even large sources, and while we don't have a large staff, it certainly
helps when States and EPA are notifying us that there are sources
coming in. So, if this can be improved somehow in the rules, that
would help things.
Participate in completeness determinations. We think we have
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mentioned to you a moment ago where it had the graph and the
relationships between aquatic deposition, deposition in aquatic
ecosystems, to be able to participate meaningfully in this completeness
determination process, and we just simply would like to see this happen
more frequently or on a regular basis.
Lengthen the minimum review period. Many of you know that
States, many States, have a 30-day review period. Well, this just
doesn't give anybody hardly any time to accomplish anything. I am not
sure if I dare suggest this is intended to try to stop comment, but it
certainly makes it very difficult for us to participate in the process.
Emphasis on post-construction monitoring. Yeah, I think it is fair
to say there is probably more that can be done in a post-construction
sense, given the fact there is such a long lead time in preparing
monitoring programs for areas that have never been before monitored
to do it in a post-construction way than in a pre-construction way, but
I think there needs to be some sort of permit conditions that are
required in order to make sure that these...if post-construction finds
something that we are able to do something about it, and many States
are doing this.
Adoption of mesoscale models. My good friend, John Irwin, is
sitting here willing, I think, to tell you all about a process that is going
on called IWAQM, the Interagency Working Group on Air Quality
Models, and that process is leading to a mesoscale, an improved
mesoscale model which, I think will help the situation of providing
more confidence, anyway, in distributing responsibility among sources
and their responsible ...and their respective impacts to Class I areas.
Adoption of this modeling technique certainly is important.
More rural ambient sampling, particularly ozone. Most ozone
sampling is near urban areas. Also, it is of an averaging time and of
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I might digress a moment to say that ecosystems are our most
important thing. It is not the lichens in the ecosystem, it is not the
diatoms, it is not these individual aspects. It is how the whole
ecosystem functions together.
Now, the loss or the damage to one of these components may be
important. It may not be as important. But we try to look at
management of the Class I areas and the Class II areas as a ecosystem
management area.
Increased small sources, especially in threatened areas...include
small sources. Somebody mentioned that earlier today. The nickel and
diming process is particularly troublesome in various parts of the
country. It has occurred in the New Hampshire and Vermont area
where you have lots of small wood-fired boilers coming in.
Adoption by EPA and the States of assessment screening
procedures. We would like to see more of a partnership in what I
described to you earlier. This is an ongoing process. As the science
improves, I think we can come up with better screening procedures for
air quality related values.
Finally, a continued support for a unified air quality related
values data base management system.
That is all I have. If there are any questions, I would be glad to
entertain them.
MR. RAHER: Rich, thank you very much.
MR. FISHER: You are welcome.
MR. RAHER: I would only suggest that if the Federal
Government is, not being a member of the Federal Government,
thinking about new kinds of programs, I would suggest you change
names like IWAQM.
Rich, one of the things that I think may be of interest before we
go on, you identified your screening, your chart there that had these.
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the aquatic ecosystem. Do you have a list of others that you have
developed so that this screening...I think it would be helpful to the
group if somehow we could see a list of what these are and what kind
of data has been generated to support those.
MR. FISHER: Yes, absolutely. As I mentioned, we did about a
dozen of those workshops. The intent was to come up with those kinds
of relationship for each of the 88 areas that we manage, the 88 Class
I areas that we manage, and I think, to a large extent, we have done
that.
That is documented in reports for about half of those workshops.
The other documents are pending, in press or in various forms of
publication right now.
MR. RAHER: Could we ask you to at least put together a list of
what they are so that...
MR. FISHER: Well, I can send you a copy. I can send you copies
of all those.
MR. RAHER: Okay, let's put that on hold.
I think John Bunyak, you may have had just from the National
Park Service that tend to follow right on to this presentation, John, if
you would like to maybe take a few minutes.
MR. BUNYAK: Sure. Similar to the Forest Service, the National
Park Service does extensive research and ambient monitoring in many
of our Class I areas, and we are finding similar adverse effects in these
areas as evidenced by the adverse impact determinations that the Park
Service has made for the Great Smoky Mountains and Shenandoah
National Parks.
I would just like to kind of throw out some of the issues that we
see that should be considered, and I noticed, looking over the agenda,
that some of them already are on the agenda, and I am sure we will
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One of the key points I would like to make is that we view the
adverse impact situation in our areas analogous to a nonattainment
area. Under the Clean Air Act, as you all know, there are specific
requirements that apply when you are in a nonattainment area such as
emission offsets, lowest achievable emission rate technology
requirements.
I guess we would like to see those kinds of programs extrapolated
to adverse impact situations, and we think there is adequate
justification for that.
One other thing that could be discussed is sharing the Federal
Land Managers' affirmative responsibility to protect Class I air quality
related values with the permitting authorities. Perhaps if the States
are given greater or if we share this responsibility, they could give
greater deference to the FLM determinations of adverse impact.
Some other topics deal with what type of adverse impact showing
is required by the Federal Land Manager, and how do we define
adverse impact? What adverse impact criteria should be established?
These all kind of are fundamental to the Class I issues.
Another important topic is how do you define what is a significant
impact. Andrea mentioned significant impact levels, and it is very
difficult to come up with those levels when you are already at an
adverse impact situation. Any small incremental amount by individual
sources could be detrimental to the sensitive resources.
That is pretty much it. I just had some thoughts. I think most of
the things already are on the agenda, and they will be covered in more
detail.
MR. RAHER: Okay. Did we have a presentation by someone from
SAMI? Pam, are you going to make a little presentation here with
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MS. FAGGERT: I had hoped to talk a little bit about what has
been going on in Virginia, some of the progress we have made in the
area to date, and also to talk a little bit about SAMI if that is okay-
MR. RAHER: Good. Why don't you go ahead and do that?
MS. FAGGERT: Okay. My name is Pam Faggert, and I am with
the Virginia Department of Environmental Quality, and I would like to
talk a little bit about our experiences in Virginia, and that may shed
some light for some of the folks who are maybe less familiar on the
issue, some of the things that are being done, including the Southern
Appalachian Mountain Initiative.
The Class I issues came to a forefront in Virginia as kind of a
combination of events and in no particular order. The first thing that
happened was in the late 1980s, Virginia's largest utility solicited bids
for power. This resulted in an unusual number of permit applications
for PSD permits from cogenerators and independent power producers.
I don't have exact statistics here with me today, but since 1987,
Virginia has issued permits to over 20 utility cogenerator and
independent power producers. Although not all of these were subject
to PSD review, most of them were.
At the same time, the Shenandoah National Park was becoming
more vocal about findings that the park was one of the most polluted
if not the most polluted national park in the nation. You have heard
some about this already, and I am sure you will hear more about that
later.
Another circumstance is that Virginia does not have a PSD State
implementation plan. As a result, when Virginia issues a PSD permit,
anybody who commented during the public comment period can petition
the EPA Administrator to hear an appeal of the permit. When this
happens, the permit goes on hold.
The petition process results in a great deal of work for everybody
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Virginia, quite a number of permits have been petitioned with results
from complete denial of the petition to a remand of the permit to the
State for further review.
Virginia wasn't staffed to handle these problems and the large
number of permit applications, and another contributing factor was, at
the time, there was a great technical debate over BACT. What was the
appropriate level of control for nitrogen oxide and sulfur dioxide?
We are now proud to have some of the tightest limits in the
nation, but believe me, there were years of debate between then and
no w.
Additionally, there were modeling problems. This was caused by
Virginia's intermediate and complex terrain, the problems of using the
gasoline models from distances greater than 50 kilometers. Also, we
had problems from modeling S02 violations which were caused by using
allowable as opposed to actual emissions in the models. This all
resulted in extreme time delays in permit applications.
Then, in 1990, the National Park Service published a notice in the
Federal Register announcing that there was existing adverse impact in
the Shenandoah National Park. They listed each of our current permit
applications and said that each of these applications had been found
to individually cause adverse impact in the park.
So, an already slow permitting process essentially came to a halt.
As you know, the PSD regulations require that when a Federal
Land Manager makes a finding of adverse impact, the permitting
authority may agree and not issue the permit or disagree, explain why,
and then issue the permit. The problem is that the New Source Review
regulations do not offer any guidance on how to determine whether or
not there is adverse impact.
To make a long story short, Virginia responded by saying that we
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was already adversely affected but had not demonstrated that any one
of the permit applications would cause adverse impact.
We did not agree with the FLM's conclusion that because the park
was already adversely affected that any additional pollution in Virginia
was too much pollution and that no permits should be issued without
offsets.
Virginia also pointed out that a very large portion of the
pollution impacting the part did not originate in Virginia. It was clear
to us that this was a regional problem that demanded a regional
solution.
The primary problem is the lack of agreed upon scientific criteria
for determining how a modeled air concentration will affect visibility,
vegetation, and stream pH. Another problem was that the gaussian
models used for permit applicants for determining compliance with the
NAAQS and the PSD increment are not considered to be accurate at
great distances.
Although the problem is far from being solved, a lot of work has
been done.
First, Congress has funded what you have already heard about,
the Interagency Workgroup on Air Quality Modeling, IWAQM, which
Virginia has not participated in as a voting member, but we have
participated, and that group now has out their interim recommendation
for modeling long-range transport impacts on regional visibility.
Secondly, I mentioned earlier that EPA has approved Class I
significance levels for Virginia to help us determine who has the
burden of proof, the permit applicant or the Federal Land Manager,
when there is an existing increment exceedance and a finding of
adverse impact by the FLM has been made.
I handed out a chart that looks like this, and the reason I want
to bring this up is because there is a great deal of confusion about
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use these levels only for determining who has the burden of proof and
not for determining whether or not an applicant will cause adverse
impact.
Now, in the same chart, I have listed the FLM significance level
that the Park Service is at least considering. I don't know, maybe John
can shed some light on how serious they are about them, and those
significance levels, also called Class I significance levels...there is a
confusion in the nomenclature ...is being considered to be used for
whether or not a new source will cause adverse impact on the park.
Virginia has not concurred with these levels, but I wanted t point
that out, because I think there is a lot of confusion between the two
significance levels that have the same name.
MR. RAHER: Pamela, could you just for a minute explain the
difference between those again, the way Virginia sees the distinction
between them?
MS. FAGGERT: Okay. The levels that Virginia proposed and
EPA approved for use in Virginia only was to determine when there is
an existing Class I increment violation and the new applicant does not
contribute significantly to that existing increment exceedance or
violation, because they are below the Virginia significance level, that
a permit may be issued with the caveat that if the Park Service has
demonstrated that they cause adverse impact anyway, a permit still
could not be issued, but if the State does not believe the Park Service
has demonstrated adverse impact, the burden of proof goes back to the
Park Service.
Now, if the applicant is above the significance levels, the burden
of proof is on the applicant. If the Park Service has found that there
will be adverse impact, the applicant must then demonstrate that they
do not contribute to that adverse impact.
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MR. RAHER: So, the State of Virginia numbers we see here are
screening numbers, in a sense, that say it is not an issue for us if you
are on one side of the line, it is an issue if you are on the other side,
the burden of proof.
MS. FAGGERT: When there is an existing increment exceedance
and when the Park Service has made a finding of adverse impact. It is
limited use.
MR. RAHER: Right, and now, how are you interpreting the Park
Service numbers?
MS. FAGGERT: We acknowledge their existence that the Park
Service has those numbers.
MR. PEDERSEN: I am still not sure I understand the
significance.
MR. RAHER: Bill, could you use the microphone?
MS. FAGGERT: It is very confusing,
MR. PEDERSEN: You say they apply where there is an increment
violation. Are they used to determine whether the source contributes
to the increment violation or whether it contributes to damage to air
quality related values or both?
MS. FAGGERT: Because of the way the PSD regulations are
written, the burden of proof shifts when there is an existing Class I
increment exceedance.
MR. PEDERSEN: Okay.
MS. FAGGERT: I don't have a copy of the regulations with me.
It could be helpful to read them.
MR. PEDERSEN: But it shifts with respect to both items, both
with respect to contribution to the increment exceedance and to
adverse impact on air quality related values?
MS. FAGGERT: I am not sure I agree with that. I would have to
think about that.
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MR. RAHER: I think that is the question. That is why I wanted
you to spend a little more time on this, because I think it is...
MS. FAGGERT: That situation?
MR. RAHER: Right.
MS. FAGGERT: I would want to think about the answer to that.
MR. RAHER: All right.
MS. FAGGERT: We have used it to determine whether or not the
burden...where the burden of proof lies. Now, with that said, if you do
contribute insignificantly to an increment violation, with regard to the
increment, you may still be issued a permit, if that answers your
question,
If there is an existing increment exceedance, a new source comes
along and contributes below the significance levels at the same time
and at the same point as the increment exceedance. The new source
may be issued a permit.
That is how we use those as well. Does that answer your
question?
MR. RAHER: So, in a sense, you are saying there is a
contribution, it is below your significance level...
MS. FAGGERT: Right.
MR. RAHER: And, therefore, it is a permitable action.
MR. PEDERSEN: If I can pursue this...
MR. RAHER: It allows a permit to be issued.
MS. FAGGERT: Yes, yes.
MR. PEDERSEN: If I can pursue this one step more, since I have
done the risky thing of actually opening up the law, it says that in
cases where a change in air quality resulting from a new facility cause
or contribute to concentrations which exceed the increment, then,
basically, the Federal Land Manager has a veto.
So, it seems to me that your screening levels would have to be
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causes or contributes to the increment violation, because if it does
cause or contribute, then it can still get its permit but only if it can
satisfy the Park Service.
MS. FAGGERT: I think I agree with that.
MR. RAHER: Pamela, let me just ask one more clarifying
question.
MS. FAGGERT: Sure.
MR. RAHER: If I look at the FLM significance levels in the next
column, clearly...let's take the S02 annual number of 0.025.
MS. FAGGERT: Right.
MR. RAHER: If I were at 0.03, I certainly would be above the
FLM significance level, but I am still below your significance level.
MS. FAGGERT: Yes. My understanding...and the Park Service
can speak for themselves on it...their significance levels were suggested
with the idea of determining whether or not a new source could cause
adverse impact for a different purpose altogether. And the confusion
is that we call them the same things, and I think people get them mixed
up.
MR. RAHER: John, maybe before David...
MR. BUNYAK: Yes, I would like to comment on that. When we
originally developed our...is this on?
MR. RAHER: It should be on.
MR. BUNYAK: When we originally came up with our significant
impact levels, they were specifically for the Class I increment issue.
We had an early...there had been a lot of talk about developing
significance levels for the air quality related values adverse impact
issue, but we haven't been able to come up with a specific number yet.
It is difficult in a case where you have, like I said before, where
you have adverse effects. How do you quantify additional pollution
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The way we came up with our numbers, we developed them
basically with a similar approach to how Virginia came up with theirs,
but we ...Virginia ratioed the Class II significance levels that you see
a couple columns over to the Class II increments and then multiplied
that number by the Class I increments.
Our numbers are derived by ratioing the Class II significance
levels to the national ambient air quality standards and then
multiplying that number by the Class I increments.
The reason we came up with that approach was the whole concept
of significance levels was first developed with respect to nonattainment
levels. In other words, if you were locating outside a nonattainment
area and you had an impact below those Class II significance numbers
in that one column, if your impact was below that, then you were
determined not to have...it was determined you wouldn't be causing or
contributing to a national air quality standard violation.
Then those numbers were extrapolated down to the Class II
significance numbers. So, I guess our contention is that heading
should be Class II significance/national air quality standards
significance, and that is when they were first used with respect to the
standards. Then people extrapolated them down.
So, if you are going to extrapolate, we think you should go back
and use the national ambient air quality standard as the denominator
in your ratio and not the Class II increments, and when you do that,
you get the smaller numbers that the Park Service proposed.
Again, I would like to emphasize that they are just for the
increment situation and not for the AQRV test.
MS. FAGGERT: Although with the current permit applicant,
there is not an increment violation, and the applicant has been told
that if they get below an impact of the significance levels that the
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MR. BUNYAK: That is correct in one particular case, but this is
kind of evolving, and there was some misunderstanding in that case in
that when you look at these numbers...these are for S02, for
example ...when you model using certain models like a mesopuff model,
some of the S02 is converted to sulfate.
So, by the nature of the model, you are going to get smaller S02
numbers, but that is not to say that when you look at the sulfur
deposition issue that it is going to be insignificant.
So, there is some...there are ongoing discussions on that, but in
general, that is not to be used for the AQRV test.
MS. FAGGERT: Except in our case.
MR. RAHER: David, you had another question?
MR. HAWKINS: Just a clarifying, another attempt to clarify this
in my mind, at least.
As I understand your description, Pam, Virginia uses its
significance level values to assign the burden with respect to the
question of contribution to an increment exceedance. Is that right?
MS. FAGGERT: Yes.
MR. HAWKINS: And not with respect to an air quality related
value?
MS. FAGGERT: We do not use them that way.
MR. HAWKINS: Okay. And my remaining question is it is not
clear to me operationally now the rebuttal presumption works. What
does one do or what would one have to do to rebut the presumption,
since this seems like it is just straight mathematics?
If you are, for example, above the significance level, how does the
applicant rebut the presumption that it is contributing to an
exceedance, or what showing would be necessary? And I would ask the
same question if one is below. How would the Federal Land Manager
rebut the presumption? What kind of information would Virginia want
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MS. FAGGERT: I think that is why we are here today, to discuss
those issues. Again, you are getting back to the burden of proof of
somebody demonstrating that a certain number or impact is or is not
causing an adverse impact. You are now developing modeling
techniques so that you can model what the resulting concentration of
a proposed source will be. The question then is what to do with those
numbers when you get them, and I think that is something that this
group could address.
MR. RAHER: But I think, Pamela, David was going back to the
question of let us assume that whatever your model is and whatever
data you put into that model shows an increment exceedance, what do
I do as a source? What are my options to come in? Is it to say I have
got a more refined model, your data was wrong, plan X is not at that
limit, that it had a permit modification and it is now 20 percent below
that? And, similarly, what does the FLM manager do to make that
similar showing?
MS. FAGGERT: The whole problem is that the New Source
Review regulations don't contain any guidance or criteria for
determining the answer to that question. I really think that is one of
the reasons we are here today.
We have struggled with that over the past 20 permits. It is not
a question anybody can answer.
MR. RAHER: So, realistically, you are saying that this is a
rebuttable presumption, but once it falls on either the permittee or the
FLM, we really have no guidance on how to get over that presumption,
at least not yet.
MS. FAGGERT: That is correct. That is why the burden of proof
is so important, because it is so difficult for the person whom the
burden of proof is on to make their case in the absence of criteria.
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MR. CARR: Let me just add that the EPA memo that approved
Virginia's use of this increment significance level says that it is not to
be used for air quality related value assessment.
MS. FAGGERT: Right, we don't use it that way.
MR. CARR: So, EPA already has a position on this is purely for
increment assumption, not for air quality related values.
MS. FAGGERT: And we have not used it that way.
MR. RAHER: And I think that is an important issue, David, that
we have got to put out on the table and try to make sure that we all
understand the distinction.
Pamela, go ahead.
MS. FAGGERT: Okay. Boy, I am glad that is over.
MR. RAHER: Hold on just a moment. I think John has
something.
MS. FAGGERT: Oh, no.
MR. RAHER: And I have one follow-up comment there.
MR. BUNYAK: There have been numerous occasions where
sources in Virginia have had impacts above those significant impact
levels proposed on Virginia. However, they don't occur at times when
the increment was modeled to be exceeded. So, therefore, it wasn't an
increment issue.
But it has been our contention that if it is above those levels,
from an increment standpoint, it is significant from that perspective,
that it also should be considered to be a significant impact from an
AQRV standpoint, and we have made that point throughout our
discussions.
MS. FAGGERT: I would like to give one more point of
clarification that in the cases where we have had an increment
exceedance, somebody mentioned earlier that it is the State's
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exceedance was caused clearly by a company located outside of
Virginia. It was not within our capability to regulate that source.
We wrote to the State. We wrote to EPA. This was years ago.
No action was ever taken.
So, we were in a position of meeting these numbers so that
economic development could, in fact, continue in Virginia because of
an increment exceedance caused by an out-of-State source we did not
have the authority to regulate, that nobody else really had an incentive
to regulate. So, that is why we asked for these numbers in the first
place.
MR. RAHER: Just one more clarifying issue.
MR. THEILER: I am not sure it is a clarifying issue. It may be
a question of Pam.
On the difference between the adverse impacts and the increment
exceedance, and David got into this a little bit, but all of the adverse
impacts that the gentleman from the Forest Service identified and that
we have been talking about are not directly related to concentrations
of sulfur dioxide or concentrations of nitrogen oxides or even maybe
a little bit more directly to fine particulates which we now have an
increment for.
The adverse impacts are ozone related. There is no increment.
Mercury deposition, there is no increment, there is no nothing. Acid
deposition, there is no increment. And the visibility issues where I am
not real sure exactly where that is right now.
We are talking here about significant levels for the increments,
and there doesn't seem to be a nexus here at all. I am not clear when
you say the burden of proof falls on the FLM manager. Then if the
increment are below this level, there may be a very weak correlation,
but where...
MS. FAGGERT: Okay.
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MS. FAGGERT: I will take a stab at it. Maybe somebody can do
better.
The increment and the AQRVs are clearly different things, that
is right. The only reason they are related is because of the
requirement that when there is an increment exceedance, it can shift
the burden of proof for AQRVs.
MR. THEILER: Even though there is a very weak correlation
between...
MS. FAGGERT: Even though they are different things, right.
Can somebody from EPA do a better job in explaining that?
MR. RAHER: Barbara, you have a clarifying?
MS. BANKOFF: You are still circling around the issue. I go back
to Dave's question which was it still sounds like sort of a mathematical
exercise and not much more. Could you maybe elaborate? You said
there have been 20 permits that have either gone through the system
or...
MS. FAGGERT: Yes.
MS. BANKOFF: I don't know what their status is. Could you...
MS. FAGGERT: Well, we have issued permits to most of them.
We currently have three active PSD permit applications.
This problem is kind of going away in Virginia, because the park
isn't one bit cleaner, but the battle is probably going to be shifting to
other States. We still are very interested in getting this situation
resolved.
MS. BANKOFF: But there has been some resolution of some of
these, and I am just curious as to how the...
MS. FAGGERT: It has been different in many cases. Basically,
in every case, the applicant has been able to get below...either there
has not been an increment exceedance or to get below the significance
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Manger, and the Land Manager has not met the burden of proof as far
as the State is concerned. So, the permits have been issued.
MS. BANKOFF: And the burden of proof is essentially going
through the math?
MS. FAGGERT: No, the burden of proof is demonstrating that
the individual source will cause adverse impact to the Class I area,
something for which there are no agreed upon criteria.
MR. RAHER: Could we maybe have...Vicki, did you want to
comment a little bit, try to add some clarification to this muddle?
MS. PATTON: Sure. I wanted to respond to your point first, and
that is the nexus question. Is this all just actually set out in the
statute, 165(d), where Congress has made the decision that whether
there is a Class I increment exceedance will determine who has the
burden of proof for AQRVs? So, that is just set out in the statute, and
we don't, as you pointed out, have increments that are keyed directly
to AQRVs. We have them for pollutants.
And just an additional note to what you were saying, Pam, and
your questions, Barbara. There have been two appeals to EPA,
because Virginia is a delegated State. The Southern Environmental
Law Center and several other environmental groups and some local
citizens have appealed two permits that Virginia issued where the
Federal Land Manager had made an adverse impact finding.
In one decision called ODEC, the ODEC decision, Old Dominion
Electric Cooperative facility in Virginia, the EPA Administrator
concluded that Virginia had a rational basis for rejecting the Federal
Land Manager's finding of adverse impact.
In the second decision, they had some facility in Buena Vista.
The Administrator concluded that the State had not provided a rational
basis for rejecting the Federal Land Manager's adverse impact finding
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So, those two decisions help in some fashion to flesh out the level
of demonstration and sort of the allocation of the roles that the States
and the Federal Land Managers find themselves in but don't answer all
of the questions.
MS. FAGGERT: There are also two other cases.
MS. PATTON: Right, sorry.
MR. RAHER: Continue, Pamela.
MS. FAGGERT: Okay. My next comment is although the problem
is far from being solved, we have done quite a bit of work in that area.
I mentioned IWAQM. I mentioned the Class I significance levels. The
third thing I would like to talk about is the Southern Appalachian
Mountain Initiative.
This group came about as a result of Federal Land Manager
concerns in the Great Smokies and also in the Park. There was a
subsequent meeting. ..I believe it was in Gatlinburg, Tennessee ...to
discuss these issues, and then Congress came up with $400,000 of
funding, and EPA has kicked in approximately, I think, $225,000 for
the past two years of grant money to fund SAMI.
The group will be having its first public meeting next week in
Ashville, North Carolina. We will be presenting draft bylaws for
public comment.
The draft bylaws have the eight States involved being members.
The eight States are Virginia, West Virginia, North Carolina, South
Carolina, Kentucky, Tennessee, Alabama, and Georgia.
We are elevating this to the secretarial commission level so that
everybody understands how important this group is to the States. We
are proposing an executive committee which will consist of States and
the Environmental Protection Agency, the National Park Service, and
the National Forest Service, with the States being the only voting
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The reason the States are the only voting members is not because
the States think they have better technical expertise. In fact, it is
quite the opposite. We acknowledge that we don't. Rather, because
we realize that we are the ones who are probably going to have to
make the regulatory decisions as a result of any recommendations that
SAMI may make. So, it is important that the States buy in to whatever
the recommendations of SAMI are.
We in Virginia are very encouraged by the formation of this
group, because we believe that, for the first time, it is an
acknowledgement of the regional nature of this problem. In the past,
it has focused a great deal on Virginia. The Shenandoah Park is
polluted. Virginia, do something about that.
We know that we can't solve the problem independently. So, we
are very pleased with the acknowledgement that it is a regional
problem.
We have several hopes for SAMI in Virginia, although the
definite missions of SAMI haven't been identified yet. The first is that
we will be able to do some regional modeling to determine the before
and after effects of the Clean Air Act.
One of the arguments in this case is that the pollution is caused
by existing sources, not sources that aren't built yet, and the
environmental group contention is that the Clean Air Act is not
sufficient to clean up the parks. The industry contention is that we
should all wait and see what the Clean Air Act will do, and then if
additional measures need to be taken, we should take them at that
time.
We are hoping we can reach some sort of consensus on this
dissension by doing an adequate inventory of emissions both now and
what we expect they will be after the Clean Air Act, and we realize
there is uncertainty there, that we can then have some modeling done
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will visibility be improved as a result of the national 50 percent
reduction of sulfur dioxide emissions, for example?
The problem, of course, is that with only less than $1 million
worth of funding, we are not going to be able to do all the inventories
and all the models. So, we are going to have to prioritize our
objectives, and that work will begin next week.
We are also hoping that SAMI will become a policy arm for
IWAQM. IWAQM is simply coming up with modeling techniques.
Somebody has to decide what then to do with the resulting numbers.
If you get a certain resultant impact, is that impact too high or
not? Somebody must make those decisions, and those decisions must
be enforced by all States.
I have mentioned earlier that we have had situations where
sources outside of Virginia caused exceedances. It is important that
our neighboring States enforce these levels as well.
Now, of course, we are here with this work group. We are very
pleased that we are working in the New Source Review angle of it as
well.
The solutions that have been proposed so far, including offsets
for all new industry, are not practical. It is almost impossible to offset
all of the emissions from a new company, sulfur dioxide perhaps being
the easiest with nitrogen oxides and volatile organic compounds being
the most difficult to attain.
If there is an outright requirement for offsets, we believe that is
the same thing as a prohibition on new industry, and that is
unacceptable to most regulators.
Another proposal that we have already discussed is creating some
sort of significance levels. It could be that that would work. I think
there will be difficulty in coming to consensus as to what those
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Even though it is pretty obvious that the problems in the Class I
areas are being caused by existing sources and not new sources, we
think it is important to come up with criteria so that new sources can
continue to be built, and that is what we are looking forward to
achieving in this group.
Thank you.
MR. RAHER: Thank you, Pamela.
MR. SOLOMON: Could you give us any indication of how well
the significance levels have worked since you have implemented them?
MS. FAGGERT: They have had very limited application. It is
very difficult to say well. I would say it has allowed permits to be
issued in certain circumstances.
There are people who would say that that is not a good result.
There are other people who would say that is a good result.
So, it has allowed permits to be issued in circumstances where we
had a Class I exceedance that was out of our control to correct. So,
from a procedural standpoint, I would say it worked. I think there are
arguments to be made as to whether or not it was a good thing that it
worked.
MR. RAHER: All right, I think just so you know where we are
heading, we probably want to try to put some issues...we have got some
on the agenda here. We would probably like to put, just spend maybe
5 or 10 minutes putting some up on the board, and then take a 10 or 15
minute coffee break, and then we can get started and start discussing
these and carrying them on after lunch.
I might just start from sitting here listening back and forth about
some of the issues we need to address, and then you all can add some
more.
It is interesting to listen. You hear people talking about the PSD
program and how that is working, and then you talk here about the
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I go back to, you know, the concept that at least it seems to me
people are talking about which is if you look at PSD as it stands by
itself, the concept of the program is to allow growth. Yet, there seems
to be a lot of discussion here that growth has an adverse impact on the
Class I areas.
It is almost as if we are trying to use a program that is not
designed to address this issue to address the issue, and I think one of
the things we need to talk about is whether or not, since PSD allows
growth and layered offsets, that concept basically do not allow growth,
how do we address that in the New Source Review program, permitting
new sources close to Class I areas?
Under that, if you listen to Virginia and what Andy said and
others, it seems to me that we have got a couple of sub-issues. One is,
what tools are currently available?
We have heard the Park Service discuss some numbers, but I am
not sure how available they are. The Forest Service has done some
research, and I am not sure how available those tools are, but what are
the tools that we have to apply?
What is a reasonable burden on a single applicant in such a
program? And I guess this goes back to what Vicki and others were
saying. I really would like to hear some discussion as to how do you
use offsets and what are offsets in terms of an AQRV. I can't seem to
put the two together. I am having trouble conceptualizing offsets and
AQRVs right now.
Those are some of the issues, besides the ones that we have on
the agenda, that I have identified as you all have been discussing these
issues. Are there any others that you feel we should put up to have a
chance to address when we come back from the break and later on this
afternoon? Not that this is foreclosing anybody from adding as we go
along.
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MR. CARR: One of the main issues, I think, under consideration
by SAMI and should be under consideration by this group is the impact
of NO, emissions on ozone levels throughout the region in the Class I
areas but throughout the States as well.
We proposed the 15 sources that the Park Service issued an
adverse impact finding on in Virginia, those 15 sources as initially
proposed would have increased nitrogen oxide emissions in the State
of Virginia by 22 percent.
So, I disagree with your starting premise that what we are talking
about is whether we are going to have growth or not growth. We are
talking about whether we can protect these valuable resources, protect
our health, and have growth, new industries, and I think we have to
look for ways to do that.
It is not enough to say well, this statute can't just limit plants, so
we have just got to permit plants, and let's see if we can't expedite the
process. We have got to look at the big impacts of this growth, and it
is not enough to say the problem is just existing sources.
So, I would urge EPA to look strongly at something it suggested
it was doing in the ODBC decision, and that is to evaluate NOx as a
precursor for ozone in the PSD program.
MR. RAHER: David, I didn't mean to suggest one way or the
other. I was just trying to identify some of the issues, but when you
raise the question, I think it would be also helpful for EPA to address
the committee in a sense as to whether or not they believe the
modeling and the science has advanced to a point where things like
ozone, acid deposition, mercury, some of the things Don was talking
about, are we at a point where increments are going to be established
or levels are going to be established for those? Can that be done?
I mean, I see my son doing things on a PC that I never thought
could be done before, and I am wondering whether or not the scientific
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increments for now and levels, is it possible to get to that point now?
And if it is, if it can be, does that help us at all?
MR. AMAR: I think we need some more discussion also on the
subject mentioned by Mr. Fisher earlier, that is, the post-construction
monitoring. I think we hear enough about pre-construction, modeling,
and others, but discussion about how that becomes an integral part of
the PSD permitting process.
MR. RAHER: The post-construction monitoring from the
standpoint of the...I mean, from the New Source Review standpoint,
how do you want to work that in?
MR. AMAR: I think one would be the ambient monitoring, post-
construction ambient monitoring, that is, to see what actually occurred
after the source was established or sited. Number two, I think you can
extend the concept of post-construction monitoring to include post-
construction costs of actual air pollution control.
What I am trying to say here, I think, is that there is a lot of
discussion about what the control equipment costs, what the regulatory
agencies say, what the source says, and the truth afterwards is quite
different from what has been said, the cost of air pollution control, in
this case, BACT costs.
MR. RAHER: That was my question. Is that more of an issue for
tomorrow's discussion that sort of goes across the board, at least the
cost issue?
MR. AMAR: That is fine.
MR. RAHER: Okay, but the whole concept of post-construction
monitoring.
MR. AMAR: It is a retrospective look at the source.
MR. RAHER: Okay. David, is your card still up? No? Okay.
Vivian?
MS. MCINTIRE: I think one thing that would warrant some
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talk about visibility, and I think we can agree that that is one that
should be looked at, but in discussions and documents that have come
out where there have been claims of air quality related values being
degraded by a source, there are very fuzzy cause-effect relationships
being made.
The fact that the tree dies may be due to any number of causes,
and I think if we are talking about air quality related values, there
ought to be a definite nexus between what the source is doing and what
can be observed or defined.
I think, from an industrial standpoint, we definitely need some
objective criteria and not have a case-by-case decision on everything
because there is a milkweed being blighted someplace somewhere for
some reason.
MR. RAHER: So, if we put this in the form of an issue, then, it
would be going back to some of the issues that Rich was talking about.
Do we have or do we have the ability to establish objective AQRV
criteria and can we agree on at least some and what the data base for
them is? All right.
David Hawkins?
MR. HAWKINS: Two quick things. First, I thought I heard you
say, Pat, that LAER and offsets might be incompatible with growth,
and I just want to quickly register a disagreement with that as a
premise.
LAER and offsets have been in place for years in nonattainment
areas, and growth has occurred in nonattainment areas. LAER and
offsets are required in the ozone transport region, and they are coming
UP with mechanisms to find ways of meeting those requirements in
order to accommodate growth as well.
So, I don't think that there is an incompatibility there.
The second point is the point has been made several times, and
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has been made several times in this meeting as well as in previous ones
that if the Class I problems are, in significant part, associated with
existing source emissions, why don't we focus on using provisions in the
law that relate to existing source emissions to address those problems
instead of using the New Source Review program?
I would suggest that if that is a serious proposal that we consider
having some very specific discussions of designing specific programs
that would, in fact, address the existing source problems, identifying
what the EPA authorities are, what the limitations on those authorities
are, how they would work with the States, what the operational
requirements ares, do we need regulation amendments, would it suffice
to have guidance on carrying out certain matters, would agreements
with States under the Section 105 grant authority be a mechanism.
I make this as a pragmatic suggestion. The reasons that there has
been a lot of focus on New Source Review as a mechanism is that it is
an existing mechanism that at least is there, and I think it is
unreasonable to expect those institutions that have concerns about the
continuing threats to these resources to simply agree to forego use of
the existing mechanisms, with all of its limitations, based on an
abstract proposition that existing source authorities could, in theory,
address these problems.
If the advocates of that approach really want that approach to be
used, then let's roll up our sleeves, sit down, and start talking about
putting some flesh on those bones.
MR. RAHER: And, David, I think, you know, that is a valid
criticism and a very useful offer. I sort of defer to the EPA people as
to whether or not the charter of this group is to really do that.
I think it is going to be hard enough to talk about New Source
Review issues and try to come to a consensus. I would hope we could
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MR. SOLOMON: No, but I think it is a very good
recommendation.
MR. HAWKINS: I would suggest that it is a condition precedent
to solving the former.
MR. RAHER: And we may find that to be, and if that is the case,
that may be the conclusion of it, that this group cannot go any further
in Class I until that happens, but I would hope at least we try to
explore the New Source Review opportunities first.
Bill Becker?
MR. BECKER: Yes, I think the issue is up there, but I want to
make certain that during our discussions of each of those issues, we
address the administrative burdens or the administrative opportunities
for, among others, State and local air pollution agencies.
It may be that we can make this system simple and perhaps save
State and local agencies significant resources by shifting the burden to
someone else, or it may be that we can...whatever we do, we need to
address both today and tomorrow, I think, all of the administrative
complexities of this program.
MR. RAHER: Chris, I think you were next.
MS. SHAVER: I just wanted to echo Dave's point which I think
is where I started today, but let me put it in terms that maybe does
make it part of the charter of this group which is, what is the
relationship between New Source Review and other existing programs.
In particular, Andy, earlier in response to my comments, suggested
that, you know, there are national ambient air quality standards out
there, and that is what drives the program.
I would ask EPA, what is the chance that you would ever adopt a
secondary standard on a national basis that would be sufficient to
protect sensitive resources in Class I areas? And I think the obvious
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If that is the case, then there may be a remedy under SIP
pollutant provisions for EPA to establish critical loads for Class I
areas under the broad authority of the SIP category that would then
provide the mechanism to drive the SIP process if those levels were
exceeded, and that gets to existing programs or establishes another
threshold for existing programs.
So, I would ask...SIP pollutants are on there, but I think the
relationship between the net that EPA has to catch things and the
needs of Class I areas is something that...there is going to be a large
gap there, and how do we fill it?
MR. RAHER: Ray?
MR. MENEBROKER: Yes, I would like to reiterate what David
said as well as Bill here, and that is that, you know, hearing the
Virginia case, it appears that Virginia has been required to go through
a lot of work and a lot of process, and yet, I hear that, in the end,
there was really no benefit to air quality and there was no solution to
the problem with the Class I area.
In thinking about it, what you do is when you have a Class I area
that has exceeded the increment, all of a sudden, you are in a
nonattainment situation. You are basically saying that area is in
nonattainment, and you are looking at trying to correct it.
I think what David is saying is what you need to do is put
together a plan or something like that. I think, from a State's
perspective, I think EPA has to take a look at any kind of reform as to
how can you minimize the amount of work that States have to do. I
mean, why should the States have to go through all this work and get
no benefit for it?
Anything that, I think, that this group could do or that EPA could
do to minimize the resources that a State has to expend to solve the
problem is really what we need to focus on.
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MS. BEAR FIELD: I just want to savor the moment of agreeing
with Chris and David.
MR. RAHER: Excuse me, we need to get this recorded now.
MS. BEAR FIELD: I find myself in the position when I am
dealing with sources seeking new source permits to say here is a source
that is in a hostage situation. It is not like under the Title V
permitting process where you are litigating, you are arguing on
somebody else's time. You want that new source permit; you need it
yesterday, and you are forced to go through all kinds of mechanisms to
try and get it.
It either causes sources to agree to conditions that they probably
can't meet. You find out later on that they don't build the source, or
after they build it, they have to get changes to the permits, because
they agree to things needing those permits.
I remember somebody describing once a limit on a scrubber, and
I asked a technical person, could you ever meet that limit? He said
God himself couldn't operate that scrubber in order to meet those
limits, and it proved to be the case.
People agree to things just to get the permit, and it is not
rational. We should be allowing new sources to be built in situations
where, particularly, they are going to be replacing some of the older,
dirtier facilities. So, we are using the program now in a perverted way
that actually hinders the replacement of older facilities.
So, I would agree that we ought to be looking at the existing
statutory programs that are on the books, and I would just like it to be
a two-part evaluation. The first part is look at the impact of the Clean
Air Act Amendments of 1990,
I can say 8.5 million tons, and there can be disagreements about
where those tons are going to come from. If you talk to people in New
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of the Mississippi and downwind of New York State and nothing is
going to come from the Midwest.
I think that is not true, but I think you do have to look at the
impact of the Clean Air Act Amendments of 1990 and try and do a good
evaluation of what impact they are going to have.
If, after you do that evaluation, you determine that there are still
adverse impacts on air quality related values, that there are still
problems that need to be addressed, I think you ought to look at the
existing statutory mechanisms and see if those can be used to address
those problems in a rational way. If they can't, I think the solution,
as painful as it may be, is to go back to Congress and tell Congress it
doesn't work, it is broke, it needs to be fixed.
I am not convinced that it is so broke that it needs to be fixed.
I do think that there are existing statutory mechanisms that can be
used to deal with these problems if the ones that Congress enacted in
1990 are not sufficient to do the job.
I guess I still have to be persuaded that what was imposed in 1990
is not going to be sufficient to do the job in lots of parts of this
country. There may be some where, even after those reductions take
place, there are still problems, and I think then it is worthwhile
working together to come up with solutions to those problems.
MR. RAHER: If we could, right now, we are still trying to make,
you know, our list of issues to talk about and begin to discuss after the
break. Are these additional issues? Ron?
MR. VAN MERSBERGEN: I think one of the issues that came up
this morning is trying to define the type of modeling that we would be
satisfied with relating emissions to the air quality related values. Do
we have to have the technology so sophisticated that there is absolutely
no doubt, or would the presence of an emission and the fact that the
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I slouched out of the Midwest where we have quite a bit of water,
and there is no drop of water that will claim responsibility for the
flood, but nevertheless, there is no question that it is partly
responsible, and I guess that addresses the aggregated effect of the
several sources. I think we have to make that determination as well.
Can we deal with the aggregate effect or not?
Maybe that is just a legal question that we have to determine, but
before we go too far, we have to have that legal determination made
for us.
MR. RAHER: Okay. Mark?
MR. CARNEY: First of all, I think I want to go to the point of
the previous issues that you have on the agenda. The only one that I
don't see that we really talked about is the issue of the AQRV
clearinghouse, and maybe somebody could explain what they meant by
that.
We have talked a little bit about AQRV impacts and significance
levels and those things, but that is the only one that I don't
understand. Maybe somebody could explain what AQRV clearinghouse
they had in mind when they put that on the agenda.
MR. RAHER: Maybe we have somebody from EPA who could just
give us a little background on that right now?
MR. SOLOMON: I would like to have Dennis Crumpler from the
New Source Review Section give a two or three minute overview of
what we are thinking about here.
MR. CRUMPLER: For several years, we have actually operated
a bulletin board within our branch. It is now entitled the Permits
Programs Bulletin Board System. Its original prototype was a New
Source Review bulletin board. It has had limited access because of the
software we used, but we had sort of a longer-term vision when we
began with that software, and it may come to fruition here over the
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We actually have the data base developed now to house all of the
AQRV information and even other kinds of Class I information, even
Class II information for public lands, and we will be bringing this
system up in the next couple of months. It will be a skeleton system
right now, because there is not a lot of information available, but we
do have it in place.
We have been working with the Forest Service and with the
National Park Service getting the format together and that sort of
thing, and they are beginning to generate the information. So, as soon
as the information becomes available, we will have the mechanism to
actually present it in a logical and digestible format.
So, if you have additional questions on that, I will be glad to
answer any questions.
MR. RAHER: Can you give us an idea as to the kind of
information that you now have that you foresee even being on in a
skeletal form?
MR. CRUMPLER: Well, one of the classic things we would like
to see on here is when there has been an adverse impact finding, say,
for example, in the Live Brook Wilderness where they no certification
is taking place or they have a particularly sensitive situation there. It
may have generated reports, summary reports and that sort of thing.
We have the ability to put that information into the system so
that everyone has access to it, and we can also actually put the reports
on there in a compressed format so people could actually download
those reports and review them at their own leisure.
We can put things on like permit information related to a specific
Class I area or a national park, and when a user would come in and
pull up that information for a national park, they would be able to see
what kinds of permit restrictions may have been applied to a particular
source locating their previously, what kinds of impact analyses they
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MR. RAHER: Rich?
MR. FISHER: Dennis, I would just like to add in addition to
what you said and also in response to the lady from Eastman Chemical,
I believe, with regard to identification of what is an AQRV after all,
we have indeed done that for all 88 areas. Those would be part of that
data base.
We have established the screening values I described before for
all of those areas, and that would be part of that data base.
So, our every attempt in the past five years is to take this process
out of the dark.
MR. CRUMPLER: And, in fact, we are working right now with the
Forest Service sort of behind the scenes in producing the system that
actually gets the information that they have been collecting into our
system, and there are a couple of other data bases around the country
that a lot of people don't know about or are not as cognizant of as they
would probably like to be, and we think we will be able to be a
clearinghouse eventually, moving at the Government's pace of course,
getting that information into our system in some form or fashion.
MR. RAHER: Could we then put as one of the issues for us to
analyze ...and maybe it can't be done at this meeting...but the
acceptability or usefulness of the Forest Service whatever we want to
call them, the guidelines? Again, we don't have a list...
MR. CRUMPLER: Screening values?
MR. RAHER: Screening values as AQRVS guidelines? At least
put that down?
MR. CRUMPLER: I would offer even perhaps...I don't know if
you call this a broadening of that issue or a clarification of it, but
perhaps the process of how those AQRVs were developed, the peer
review type process and the way that the Forest Service went about
that. Maybe there could be refinements of that, but it did involve a lot
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65
of research in some cases, and the Park Service now is beginning work.
Well, they have done a lot of work, but now they are beginning to focus
on how to channel that work into this kind of a process. It is a very
positive step.
MR. RAHER: Rich, did you have another issue?
MR. FISHER: Yes, it is separate from this.
MR. RAHER: That is fine. Go ahead.
MR. FISHER: Okay. Along the lines of Chris Shaver's earlier
comment that maybe we ought to be looking for some creative ways to
solving the problems that plagues us at this point and in part in
response to the question of whether the models and our knowledge of
regional impacts is sufficient for us to take a different tack...and I
think they are...my suggestion is that we identify some sort of long-
term strategy.
Strategy is an overworked term these days, but I think we would
all agree that we are operating more often in a reactionary mode than
we are in an anticipatory mode, and my suggest is that we have
probably enough technical tools in our hands right now to try to plan
ahead five years.
Where are the problems now? Where would we anticipate growth
to occur? Can we do large-scale management?
Let's take the area perhaps in the front range of the
Appalachians. Can we begin identifying where the problems are, as a
community of States and regulators and industry and so forth begin
planning where the growth ought to be occurring as opposed to doing
a micromanagement that we find ourselves doing now, a large source
in a small area and then small administrative entities fighting among
themselves for what kind of impact that would have?
MR. RAHER: Rich, that may go back to what David Hawkins was
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resolve this, but I think we really do have to keep focusing in on the
New Source concept.
Leslie?
MS. RITTS: I did have a question for Rich on that screening
values, Rich. Those are based on the screening values that the Forest
Service has developed? Those are based on the existing perceived
impact on the resources in those areas, is it not?
MR. FISHER: It is based on a collection of information about
the susceptibility of those areas to additional impact as well as to the
current impact.
MR. RAHER: Yes, I think we want to spend some more time on
that as a group, sort of trying to figure out whether or not it is useful,
and that is, I think, the very kind of question we need to look at.
Don?
MR. THEILER: I would like to second the suggestion that you
look at the guidelines that the Forest Service has developed, perhaps
do that in a subcommittee kind of a setting, because I think there are
some very technical kinds of things that you are just not going to be
able to get at around this kind of a table.
I think it is important for people to realize, and I think the
Forest Service is discovering this, that we are really...one of the real
developing areas in science of air pollution today is biomonitoring and
our abilities now to begin to pick up impacts, low level impacts, of air
pollution on vegetation and other parts of the ecosystem. It is really
exploding.
I think this is going to be an area of a lot of difficult work if we
are really going to tackle this, because things are developing so quickly
in this area.
The other thing I would like to just touch upon is it seems to me,
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was it David's suggestion that we take small bites out of this apple if
we can.
Are we around the table fairly comfortable with the idea that the
problem here is really with the AQRVs and not so much with the
increments except this issue of burden of proof that, for example,
perhaps the screening values that Virginia has or something like that
could be used to deal with this increment issue? I mean, if we want to
make some progress, perhaps here is a way to do it, try to define a de
minimis level, and if you are below that in terms of acceptable
modeling techniques, it would be that you don't have to do something;
if you are above it, you are exacerbating the increment problems and,
therefore, you would have to offset.
I mean, are we in? Can we make some progress on this particular
issue?
MR. RAHER: I think that is a good question. I think that is a
major question, and maybe what we can do is I would propose that we
take just a 10-minute coffee break right now. Let's be back at 11:10.
We will go to lunch and have some time for public comment, but why
don't we start off with that question and spend a little time as to
whether or not there is some consensus of at least issues that can be
discussed or areas where we can work toward on that?
Ten minutes.
(WHEREUPON, a brief recess was taken.)
MR. RAHER: We begin again. I think what we would like to do
is, first of all, I was reminded by David that we do not want to
overlook and make sure we have on our list of issues to talk about the
coordination issue between the permitting authority and the FLM. So,
if we can make sure that that is on our list, it certainly is on the
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Why don't we start? I think the process now is to really look at
each of these issues and try to exhaust them a little bit and get some
of your thoughts on them and try to identify issues.
Again, one of the goals, as Lydia brought up earlier this morning,
is to see if, at the end of today or tomorrow, we don't say that there
are at least some work groups that can be put together to try to resolve
issues that it appears consensus is at least possible, not that it is
actually going to occur, of course.
So, we will start the discussion of these issues, and it will carry
on later this afternoon, so there is no need to complete one before
lunch or after. Let's just see how we go.
Don, you brought up the issue just before the break, and you have
got your card up, so maybe you want to say something else, but...that
was left over? Well, I picked on it anyway.
I think it would be helpful if we discuss and everybody has clear
in their mind, as clear as we can get it, the whole issue of the
distinction between increments and AQRVs and do we have a problem
with one or do we have a problem with both and, if so, what are those
problems. Maybe we can then start to work towards getting some
resolution of those.
One thing that I was not clear on and I think some other people
indicated they were not and so I would like Vicki Patton to just take
a few minutes is to go back over her sort of general reference to the
regulations and the fact that we have increments but that they lead to
the...you know, they are sort of that offhand comment, well, they just
sort of lead to this AQRV issue. I think we all need to just understand
that from the General Counsel's side just a little bit better before we
delve into the murky waters of what these two areas are.
So, Vicki, could you just take a minute and maybe give us a little
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MS. PATTON: Sure. Just to reiterate...and please chime in if
anyone would like...I am actually looking at Section 165(d) of this Act
here, if you have the statute in front of you. The statute indicates that
Class I increment exceedance determines who has the burden of proof
in demonstrating either the presence or absence of an adverse impact
on air quality related values, including visibility.
So, a Class I exceedance is not dispositive of whether there is, in
fact, an adverse impact.
In the case where there is a Class I exceedance, then the
applicant has the burden of showing to the Federal Land Manager that
there is not an adverse impact on air quality related values, including
visibility, and when there is not a Class I exceedance, the Federal Land
Manager has the burden of proving to the satisfaction of the State that
there is, in fact, an adverse impact on air quality related values.
The two PSD permit appeals decisions that I referred to earlier
give some indication about what burden the Federal Land Manager has
where there is not a Class I increment exceedance and the State's
authority to reject that finding.
As I indicated, in one instance where this was appealed to the
Administrator, the Administrator concluded the State had
appropriately concluded or had not clearly erred in rejecting the
Federal Land Manager's finding that there was an adverse impact on
air quality related values. In a subsequent decision, the Administrator
then or the now Environmental Appeals Board concluded that the State
had not offered a rational basis for rejecting the Federal Land
Manager's finding.
Both those decisions were in the context of their not being a
Class I increments exceedance, and I hope that has helped clear it up
a little bit.
I guess the bottom line is that the presence of a Class I
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dispositive of whether there is, in fact, an adverse impact on air
quality related values.
MR. RAHER: So, if I could try to summarize, you are saying that
if there is no Class I increment exceedance, there still could be an
FLM that is saying...or State even or someone else ...saying that there
may be an AQRV adverse impact, but the burden lies on them? There
is the presumption that if there is no exceedance of the increment that
there will be no violation? It is just putting the burden of proof.
MS. PATTON: Right. The burden in that instance is on the FLM
to prove to the satisfaction of the State.
MR. RAHER: All right. So, we still have the question of what
are those AQRVs and how do you demonstrate them, but going back to
what Don indicated earlier, can we have some discussion or does there
appear to be issues that we are not addressing or that we should
address with respect to that test?
Is it in the mind of the permittees, the environmental groups, the
State regulators, is the initial cut that Class I increment determination
and exceedance of that Class I increment determination is sufficient to
make the first determination as to burden of proof?
David?
MR. CARR: Well, I won't respond directly to that, because the
law sets out how the burden of proof shifts when the increment is
violated or not violated.
MR. RAHER: Right, and I am not...again, I am not discussing the
legal issue. What I want to say is, from an operational standpoint,
from a modeling standpoint, from a data standpoint, is everybody
comfortable that the program works fine there and we don't have a
problem?
MR. CARR: Well, that is what I want to address, and that is that
in the first thing that Vicki referred to was the ODBC case, and in that
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the park. Thus, we didn't know whether or not there was an increment
violation. The applicant claimed there wasn't, because nobody had
modeled it; we suggested that there could be if it had been modeled.
That is the big gap. That has been the big gap in Virginia from
our perspective is sources generally beyond 100 kilometers have not
been included in the increment analysis, whereas we believe those
sources can contribute to increment consumption.
So, you never get to the point of knowing who should have the
burden of proof, and that is something that I hope the modeling that
IWAQM is looking at is going to help us with, but we disagree with any
sharp cutoff of 100 kilometers for increment modeling. If you include
sources up to 200 kilometers or something like that in your increment
modeling, then it gives you some basis on which to then assess
contribution to the resource and then look at adverse impacts.
MR. RAHER: Don, is your...
MR. THEILER: I just wanted to say I don't disagree with what
you have said there, and just to pursue a little bit, Pat, on the areas of
agreement or disagreement, if you will, Virginia has here a set of, I
would call them, de minimis levels for determining significance, and it
could be used...as I understand it, Pat, it is used on two contexts. I
mean Pam.
Is it, number one, if it is below those levels that the source then
does not have to deal with or you would not deny the permit for a
source that is below that significant level if there was an increment
violation, even though they might have a very, very small contribution
to that increment violation?
I seem to hear that is what you said to Andrea when she raised
the issue very early on, that this would be used as a cut point just like
for offsets in nonattainment areas. If you are below a certain tonnage,
you don't have to offset.
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MS. FAGGERT: I am going to agree completely with the caveat
that if some other reason we agreed with the Land Manager that the
new source did cause adverse impact...
MR. THEILER: I am not just dealing with the adverse impact
issue. That is the second issue.
MS. FAGGERT: Okay.
MR. THEILER: Then the second point that you used this for
determining the burden of proof for adverse impact analysis, leaving
aside the 100 kilometer issue which I think is a very legitimate issue,
that is what you use again for de minimis determination as to when the
burden of proof shifts, because at some point, you have to have that.
Otherwise, one atom of a compound that could possibly be traced
impacting an area would all of a sudden be the responsibility of that
source no matter where they were in the world.
You know, we need to have some rational basis for doing this.
So, that is how you are using that.
MS. FAGGERT: Yes.
MR. THEILER: I mean some sort of structure like this. You may
not agree with these specific numbers, but this may be useful as a
construct for use to pursue and look at the numbers and deal with the
kinds of issues that David has addressed in terms of 100 kilometers or
any distance, because you can model this stuff for pretty near any
distance, especially if we get our modeling act together.
MR. RAHER: As we go around, obviously, let's talk about any
other issues you want, but let's try to keep in mind that very question.
Is this format...let's call it the Virginia format. Let's not talk about
the number right now. Let's not talk about the 100 kilometer versus
200 kilometers or more. Those are separate issues, but is this format
one that appears workable and acceptable? If so or if not, then let's
identify the issues.
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MR. CARNEY: I would tend to believe that it is workable. I
think for new sources that can establish what the requirements are in
terms of impacts, they know what the rules are, and you can do what
you have to do in order to get yourself in there, and you leave the
burden to the individual source.
They could determine that they don't want to locate in the
particular area, because they know that the impact is going to be above
this significance level. Or they could decide they want to put on
something LAER or something better than that.
I think it really puts...it shifts it back to the source making their
decision on where they want to be, what their emissions need to be.
The levels, I think, are low enough, you know, not talking about a
number but the levels would be low enough to allow or to force the
sources into something at BACT level at a minimum, and that would
allow that opportunity.
I think what it also does is it says that the individual source can
then say they are not the major contributor or not a contributor at all,
and the modeling analysis throws it back for the rest of the existing
sources, throws it back into the comment that David was making about
the fact that maybe the existing sources should be out of this program
anyway.
MR. RAHER: David?
MR. HAWKINS: I just want to once again seek a little
clarification, because the further discussion on these Virginia
significance levels suggests to me that they really are a bright line test
with respect to the contribution to an increment exceedance, and there
is just a lot of confusion.
I don't think it is a burden shifting thing. Once the facts have
been determined based on the competing contingencies of the modeling
analyses, as I understand it, if you are under these significance
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determines that you are under, they are going to issue the permit.
They are going to make a finding that there is no contribution, period.
It is not rebuttable. It is a determination.
Is that correct? That is what I was asking you before, whether
there was a way of rebutting this non-contribution presumption, but it
doesn't sound like there is.
MS. FAGGERT: There is.
MR. HAWKINS: How?
MS. FAGGERT: There is not with regard to the increment
exceedance.
MR. HAWKINS: That is...okay.
MS. FAGGERT: But there is with regard to AQRVs.
MR. HAWKINS: Yes, and I think we are agreeing we are not
moving to that yet. So, I want to focus just on the increment
exceedance issue, because then that has the implication of shifting you
over into the AQRV burden.
And I think there are some difficulties with having a bright line
test that says something that is a non-zero contribution is not a
contribution.
The reason I think there are difficulties with it and that I would
not be comfortable with setting that up as an acceptable mechanism is
that it is added to, in many cases, an unacceptable status quo. To
borrow Ron's flood analogy, it is like being handed a hot cup of coffee
that is full to the brim and having someone pour a little more in.
That little more is fine if the cup isn't full to the brim, but it is
full to the brim, and what is the logic, other than finding an efficient
way to permit new sources, of saying something that is a contribution
isn't a contribution?
I appreciate that logic, but you have to...I think you have to
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which is getting the new sources permitted. It doesn't address at all
the other concerns that we are here to discuss.
MR. RAHER: David, let me ask a point of clarification here.
Your analysis and the way the Virginia program works for the
increment issue, I want to make sure I understand it.
It seems that Pam is saying, using your cup of coffee analogy,
what when her source adds a little more coffee to the cup, it if doesn't
exceed the rim of the cup, it is not exceeding the increment. They are
going to get a permit.
I am assuming that her modeling procedure is what...when we are
looking at the Class I increment levels here, is what is telling her if
the cup is full. When that source is permitted, we now have the cup
full. Is that...
MR. HAWKINS: The cup is full when the application comes in.
There is already stuff in the saucer or on the tablecloth, and what
Virginia is saying is that if the additional number of fluid ounces is
below this number, we will ignore the fact that the stain is spreading.
MS. SHAVER: The question I had is, is it a cumulative impact
analysis, or is this just a line for the source itself so it is doing a
screening impact analysis?
MS. FAGGERT: When you do increment, it is done in accordance
with the procedures which is cumulative in terms of your model the
people who are increment consumers. I don't know if we want to get
into that discussion.
When you are adding a new source to it, you are just looking at
the impacts of the one source you are permitting.
So, your number goes to just the impact of the one source that is
being...
MS. FAGGERT: In your model, you include everybody who was
already there and the people who are permitted but not built yet that
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cup. Then you add the impact of the applicant by itself. That is what
y°ur number is.
MS. FAGGERT: So, the delta is what you are measuring this
number against or is what you are measuring.
MS. FAGGERT: The change caused by the new source.
MS. SHAVER: Right, okay.
MR. RAHER: So, we are all again...I understand what the stain
spreads here.
Eventually, that addition, which, under the best of circumstances,
is expected to be low, so we are going to say it doesn t count.
But, eventually, it does count if a permit is issued. It gets added
to the cup.
So, at some point in time here, are we not in a position even in
the State of Virginia's analysis where that cup is going to be full, and
^ there a situation where we are below this de minimis level and you
still get your permit.
Is that what you are saying, David, that you still get your permit
and the cup just continues to overflow? We are always going to be at
the top of that cup overflowing, because as long as the new source
stays below this level, it is not considered to be adding anything.
MR. HAWKINS: Right, and as soon as it is operating, it is one
°f those pesky existing sources that we really ought to be doing
something about.
MR. RAHER: Right. Don?
MR. THEILER: I appreciate what David is saying, but in the real
World, we have got to do something about this de minimis issue. W^e
will be totally.
If you buy what David said that you can model from any distance
and our models are getting more and more sophisticated and we will be
able to do those kinds of things, and our ability to estimate impacts
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1000 miles away from this national park is going to create one-billi°nt^
of a microgram of addition. Therefore, it has got to find an offset
someplace or something.
We have got to make some rational decisions on this. It is
everywhere in the program. There are de minimis levels everywhere
we have operations, whether defining major source or where you have
to get offsets in nonattainment areas.
If you began to take this PSD program apart and look at how we
are protecting increments, this is a very, very small piece of the pie>
We are not protecting increments. Existing sources are not controlled-
You are taking only actual emissions, and those can change from year
to year. It is a screwy system. It is not a good system.
This is a very small piece, and I think, to make progress, it would
be a good idea for everybody to come together and agree on some sort
of de minimis levels, wherever that may be.
MR. THEILER: Sure, and I agree with you, Dave, completely) but
that goes to the issue that Pat doesn't want to talk about.
MR. HAWKINS: Could I make a real quick response? I agree
with Don that de minimis has a role to play, and my concern is that we
are talking about de minimis in isolation. It has a role to play as part
of an integrated program to try to address these resource problems-
If we have a coffee cup program that keeps the level of the coffee
two inches below the surface or below the lid, then de minimis works
fine, but when it doesn't work fine is what it is just put it in isolation'
ignoring the fact that the stuff is already over the top.
MR. THEILER: Sure, and I agree with you, Dave, completely; bu*
that goes to the issue that Pat doesn't want to talk about.
MS. RITTS: Isn't the increment the safety on the system? Isn t
that why the increment is created?
MR. HAWKINS: But we are talking about a situation where w6
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just talking about adding a little bit more today and a little bit more
tomorrow, and a little bit more the next day.
MR. RAHER: And is the issue, I guess to throw it on the table
here, is the issue the New Source Review program? Is that really
designed, is it appropriate to try to address that issue, David, or does
it have to be addressed in a more macro area and in other programs?
That is the question.
I am wondering whether we can agree on your situation, agree on
the problem, agree on the adverse impact, but also agree on the fact
that from a New Source Review standpoint, the de minimis rule has to
be looked at, because it is an integral program by itself. Later on,
once it is put together, then we have to address the other.
We had a couple other. Bill, you were next and then Bill
Pedersen.
MR. BUMPERS: Don hit a lot of the comments I had, but first,
1 am really enjoying the Reagan-esque analogies we are getting going
here. I hope we can find other nice colorful examples.
I wanted to take it sort of a step further and really echo what
Andrea said earlier, which is I think the certainty element that
Virginia is trying to create here is incredibly important for clients like
mine which are mostly power plants, because when you go into a
situation where you try to get a source, you have got investments to
look at.
If you go into a situation where you are trying to get a permit and
y°u have no idea in the end what you are going to have to invest to
reach sub-increment levels and then potentially have it appealed for
AQRV purposes, and then come back and have to invest multiple more
millions to try to achieve limits to avoid that problem or fail to get the
Permit, then you are really going to stifle the prospects of new sources
no matter how environmentally beneficial they may be relative to the
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Frankly, I would argue that the increments, the de minimis
increment level is important, but I think a next step which would be
even more important is maybe a de micromis level whereby you can
avoid all of this uncertainty beyond that level at all.
I mean, there ought to be some level where we can say look, if we
can improve on the increment level to ensure that we are going to
protect air quality values in some fashion. ..and, again, we are not
being able to define the air quality values very well yet...then there
ought to be that type of focus so that a new source can, in fact, get
permitted much more quickly than currently happens without the
uncertainty.
MR. RAHER: Bill and then Chris.
MR. PEDERSEN: It seems to me we have passed a switch point
in our discussion without really taking note of the fact, and I would
like to go back to it. Earlier in the morning, we talked about air
quality related values apart from the increments, and now in discussing
the Virginia screening level, these seem to me as nothing more than a
rule of thumb for administering increment consumption and deciding
when you have busted it for regulatory purposes and when you haven t.
I guess we need to ask to what extent the problem is the first of
the second, because they raise completely different legal and policy
issues as far as I can see. I mean, air quality related values are these
inchoate, undefined, never defined things where the Clean Air Act says
little about them with respect to new sources and almost nothing with
respect to existing sources. That is one kind of a problem.
The increments are sharply defined. You know what they are'
They are legally binding. There is a program for applying them to
existing sources.
Frankly, I can see splitting...well, first, to discuss it intelligently'
we need to know which it is, and, second, I see the link between new
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increments, because they are in the law that you have to control
existing sources.
MR. RAHER: Well, I think we are still at the increment level
right now just to see if that Virginia type program can be discussed at
all.
MR. PEDERSEN: Well, I guess the question I would ask is, to
what extent are the air quality problems in the Class I areas problems
°f increment exceedances that haven't been detected, and to what
extent are they problems where everyone agrees there is no increment
that is busted and it is a pure air quality related values issue?
MR. RAHER: Chris?
MS. SHAVER: Let me first try to respond to your last question
there. I think, in many cases, we don't know, because most States,
unlike Virginia, do not require increment tracking and increment
consumption analysis, and even in Virginia, they restrict it to 100
kilometers. So, that is a basic problem, if that helps at all.
With respect to the Virginia type test, I philosophically have a
Problem for the same reason Dave Hawkins does, and to throw another
analogy out there, I look at it as a sewer line that we just keep
attaching new homes to and new pipes saying one more flush will not
hurt, and meanwhile it is backing up in your basement, and the city as
a whole has required a 50 percent reduction in the amount of stuff
going into the lines, but your neighborhood happens to be developing,
a°d it is not helping you at all.
I think that makes it a lot more colorful and actually
Probably., .well, not that colorful, depending.
Philosophically, I have a problem; rationally, I agree that there
Is a need for some test in some line. The problem is right now that, in
cases where increment exceedances or violations are being detected,
they are not necessarily being fixed within the 60 days that they are
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So, if there were such a test, I would suggest it be coupled with
a hammer which says that if the State has not revised its plan within
60 days or...that is probably an unreasonable amount of time, but if
they haven't revised it, then there is no longer a significant impact
level. Sources do not get permitted until that plant is fixed.
That creates the incentive to have the hand over the existing
sources, let's the new sources have the significant level as long as the
State is doing its job.
MR. RAHER: All right. So, an issue for us to at least consider
is whether or not the de minimis level and the test issue that we have
here, can we couple it with something from an administrative
standpoint that allows the benefits of that to accrue but, at the same
time, doesn't just ignore the problem even though theoretically it
should be fixed by a different area of the program.
Andrea?
MS. BEAR FIELD: I am going to go back to David's analogy just
because.
One of the things to keep in mind in this, and I know it came up
in at least one of the Virginia permitting situations, was a plant, a
power plant that comes in and has a very small impact, and the
analysis, the economic dispatch analysis shows that actually, by
operating that power plant, that new one, you are going to cut back on
the operations of other plants that are much higher polluting than the
one that you are about to get a permit for.
So, to go back to David's analogy, rather than dropping a few
more drops of coffee into the cup, you are actually reducing the level
significantly that is in the cup, but that somehow doesn't get factored
into the whole equation, and that is one of the problems of this
analysis.
You are focusing so much on that one or two drops that is coming
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to what I said earlier. That is you are focusing on these new sources
which, in many instances, are replacements for older, dirtier facilities,
and you are making it harder and harder for the new sources to get
permitted, and the older, dirtier facilities keep operating.
There is something really perverse about a system that
perpetuates this. Going back to what Don Theiler said earlier, there
has to be some cutoff if you are small enough, if you are far enough
away from a Class I area that you are able to get a permit to build the
facility.
The models, as someone said earlier, the models can go 100 or
200 kilometers more. At some point, just because you model an impact
of X doesn't mean that there really is an impact. It is indisting...that
number, whatever predicted impact you have, is indistinguishable from
zero.
It may be more than zero; it may be zero. It is meaningless, and
yet, we are trying to give weight to those numbers in this process, and
it is not getting us any further toward solving the problems that we
talked about earlier today.
MR. RAHER: John?
MR. BUNYAK: I have two comments. One is to follow up on
Chris' comment about the need to implement programs to correct
violations. I think that is something that needs to be followed up on.
It doesn't make much sense to us to continually permit new sources
that contribute to the problem without dealing with the problem.
The second point is that I realize we are only talking about
increment at this time and that the adverse impact on the AQRV levels
would be perhaps lower than those Virginia numbers, but it seems
reasonable to me that if you are above those numbers, you are
determined to be significant from an increment standpoint, it seems
logical to conclude that you would also be significant from an AQRV
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MR. RAHER: All right. Again, another issue to throw out there
is if we could come to some set of values like that, is that a reasonable
assumption, that if you are above the significance test, in fact, is it
appropriate to say you would be having an adverse impact on the
AQRVs?
John Paul?
MR. PAUL: I had a question with regard to Virginia, and that is
where is the SIP call. I mean, if they are exceeding the increment,
then there should be...EPA should be asking them to revise their State
implementation plan to deal with that problem, and when they deal
with that problem, then they could address the situation as to how they
would allow any further growth, you know, to occur.
MR. RAHER: That is a touchy question. Do we really want to
answer it on the record?
MR. PAUL: Well, rather than...
MS. FAGGERT: I don't want EPA to answer it, though.
MR. PAUL: Rather than invent a new system, I am at least
curious as to whether or not the current system is being implemented
to see if it will take care of the situation.
MR. RAHER: Pamela?
MS. FAGGERT: I want to put that one to rest real quick. First
of all, in the situation where you have had a Virginia company or group
of companies responsible for an increment violation, we acknowledge
our responsibility to correct it, and we have done so.
In a situation where the increment problem is caused by a
company located outside the State boundaries of Virginia, a SIP call
would not help. It would not solve the problems. That has happened.
That is why we asked for the de minimis or the significance
levels, because it was not within Virginia's capability to regulate a
source outside our borders. So, we wrote to EPA and said listen, EPA,
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else's problem. We are just telling you about. You guys solve it, but
in the meantime, give us some significance levels so that somebody
else's problem isn't causing resulting economic development problems
in Virginia. That was the genesis of these significance levels.
MR. PAUL: So, EPA should be issuing a SIP call to Maryland?
Is that the solution? I mean, if it is clear that a source in Maryland is
doing this, then EPA should be telling them that their plan is not
adequate.
MR. RAHER: Again, we may be going a little further than New
Source Re view right now, but...
MR. PAUL: Well, no. I mean, if an increment is exceeded, then
the State is supposed to get a call, you know, to correct their plan to
correct that situation. I mean, I am just trying to see if the current
system, if carried out, is adequate rather than, you know, try to look
for inventing a new system.
MR. RAHER: David?
MR. HAWKINS: On the out of State thing, I don't know whether
Virginia using the 126 petition route, but just a reminder that it is still
there for interstate impacts which do include PSD increment
interference.
But going back to the significance level, it seems to me clear that
what is going on here is creating a legal fiction to avoid the remedy
that is proposed in the statute. Just, you know, to return to the
statute, when a determination is made, as Vicki Patton's recitation
from the statute indicated, when a determination is made that an
increment is exceeded or that an applicant is contributing to an
exceedance, that is not the end of the inquiry.
It doesn't say in all circumstances that the permit may not issue.
What it does is shift the burden, and it shifts the burden onto the air
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So, the operational significance of these significance levels is to
keep the burden with the Federal Land Manager and to prevent
shifting the burden to the applicant, and, you know, that raises
fundamental questions of fairness in my mind.
Why shouldn't the burden shift to the applicant at that point to
discuss the air quality related values? Why isn't that the appropriate
remedy? It is the one in the statute.
MR. RAHER: All right. I don't want to cut off discussion of this.
In fact, I think it is appropriate that we continue it on after lunch, but
the call and the notice on this does indicate that the public has an
opportunity at this point to make any presentations or discussions.
I would now offer to the public...there is a microphone in the
back...of there are any questions of clarification, if there are any
points that you believe from the Class I issue and New Source Review
should be placed on the list for the committee to be considering,
please feel free to go up and raise those at the this time, and the
committee would appreciate any input you may have.
Is there any input from the members of the audience on these
issues? We have one. Make sure that you identify yourself so that the
tape recorder knows who is speaking.
MR. JOHNSON: Ken Johnson with Duke Energy Coop. As
owners of the Mecklenburg cogeneration facility in Virginia, I would
like to stand in defense of Virginia on the SIP issue in which we did
have...I am sorry, on the...yes, on the SIP issue. We did have a model
problem on an NAAQS, but we were able to work with Virginia and a
host facility to get that facility in compliance and our own, and we did
go through Virginia and regional EPA on that.
MR. RAHER: Fine. Any other comments? Would any member of
the committee want to raise any issues before we take a lunch break in
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If not, we will break for an hour for lunch and reconvene, and I
guess just to give you some food for thought along with food for
sustenance is the, again, to try to see if we can't...if you as committee
members can't try to coalesce around some of these issues and address
the ones that David and Chris and Andrea and others have been raising
here on the increment issue, and then we probably need to begin to
move on to the AQRV issue later on for discussion as well.
All right, we will see you at 1:00 o'clock.
(WHEREUPON, a luncheon recess was taken.)
MR. RAHER: Welcome back from lunch. Now, whether what we
are euphemistically calling the Virginia cut points on the increment
issue, if there are any additional comments that anyone has with
respect to that concept, and then I would like to move on, with the
agreement that we haven't reached consensus on any way on that issue,
but move on then into the AQRVs to see if we can begin just a general
discussion in that area and try to flesh out some points.
Richard, do you have a comment?
MR. ZBUR: Yes, I...
MR. RAHER: It is on.
MR. ZBUR: Is it on?
MR. RAHER: Yes.
MR. ZBUR: I just had a question for Dave and, I guess, for Chris
on the significance threshold issue. I think I generally think that there
needs to be bright line test to differentiate cases in which you are just
dealing with sort of the noise level in the modeling methodology versus
those cases in which there may be some type of contribution.
With that said, though, and I guess in the spirit of just trying to
narrow down understanding of where there is disagreement on the
issues, there seems to be cases where, because the statute is not
dynamic in terms of recognizing outflow from the cup, in fact, you may
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are modeling baseline concentration based upon emissions that existed
at the time that the first permit application was put in place and,
therefore, outflow decreases and emissions may not be taken into
account in the baseline from which you are measuring from, that there
may be room in the cup.
I guess I would like to understand whether or not your concern
about using a significance threshold in circumstances where a State
agency or a permit applicant can show that, in fact, there is some
additional room in the cup, whether or not you would have the same
concerns about a significance threshold of the type that Virginia has
been using.
MS. SHAVER: Let me just respond. One, any increases or
decreases after the baseline data are taken into account in the
increment analysis. So, that should be done as part of the modeling as
a general rule. So, if it is...if it doesn't count in that way, it wouldn't
be factored into the decision.
MR. ZBUR: Well, I think the baseline concentrations, at least
the way I read the statute...and I don't represent a lot of companies on
this, but the way I read the statute is you take the baseline
concentration measured from the date that the first permit application
was submitted, and then you only add increases.
MS. SHAVER: No, no, you do increases and decreases. The other
thing...and that is in the regulations. Somebody, I am sure, could give
you a cite. I am not going to bother.
The other thing I want to say is I think our...well, my fundamental
concern here, the increments are just a way of establishing a burden of
proof. The reality is that there are adverse effects occurring anyway.
So, the fact that someone could come in and argue that gee, it is
not quite as bad as it was back then or not as bad as we think, it is still
bad. So, I don't think you change that by showing that there has been
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MR. RAHER: David Carr?
MR. CARR: Just a comment on the increment levels that Virginia
has now. To follow up on David Hawkins' analogy, if the coffee cup is
now full and we have 20 new sources that almost meet these
significance levels, we will have two coffee cups that are full.
So, clearly, if we have a full coffee cup, the significance levels
are problematic for us. If we are under, well under those, then I think
that is a different issue. Might be something we can discuss.
MR. RAHER: Mark?
MR. CARNEY: We have been talking about this coffee cup that
is full. Nobody seems to know who is keeping track of the coffee cup
being full, and I think that is an important point.
You know, it is sort of like Class II increments and increment
consumption associated with that. We were talking over lunch, and
maybe because of the problems that Virginia has run into or the fact
that there are sources that are outside their State that maybe needs to
be a little more regional, maybe we need to be looking at something
like SAMI where you would have groups that know if the coffee cup is
full.
We would be able to say okay, that coffee cup is full, and we
know that, and somebody is keeping track of that. The next source
comes in, they start looking at the significance levels, and they say that
significance level will not work in this particular case, because that
cup is already full.
MR. RAHER: Don?
MR. THEILER: I would like to go back to something that John
Paul brought up. I think we are bringing together two different
problems, and I think we need to make sure we keep them separated
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We will use the phrase coffee cup is full. If the coffee cup is full,
there ought to be something being done about it. There are programs
that deal with that. They may need to be strengthened.
The interstate issue is a very good issue. It ought to be
addressed. It ought to be addressed either here, or it ought to be
addressed by somebody.
But the coffee cup is full. That is fine, but we still, I would
contend, then need a de minimis level, and as long as the issue is being
dealt with that the coffee cup is full and there is a process in place to
get it down where it ought to be again, then we ought to be using, I
think, the de minimis criteria for screening projects in or out of the
process for increment consumption.
If they are below the de minimis level, they can still go in. They
have to be taken account of in the process that is being done to bring
the coffee cup down to a manageable level, but you can't stop
everything unless, I would contend...and this is also a way the Clean
Air Act has worked...if the States who are responsible for that coffee
cup are not responding and not putting in place a program that will get
the program under control.
Then, sure, just like a construction ban in the nonattainment
area, you can slap on a process that would pretty much halt new
sources going into the area, but we need to separate these a little bit
and not, because there is a problem, and it may be being addressed,
not punish every new source that may be locating anywhere within the
country because it might have some potential impact on that.
We have got to identify a de minimis level that would be
significant and say if they are under that and the process is being taken
care of, they can still go in. They will not be significantly impacting
this process of cleaning up this area.
MR. RAHER: I think some...I hate to use the word consensus, but
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needs to be a process for making sure that program of keeping the
coffee cup from overflowing is going that it probably...we should be
putting down on one of our lists here that EPA needs to be considering
whether or not there is such a process in existence or could be created.
It doesn't have to be this committee, but I think it is hard for you
committee members, all of us, to try to resolve an issue when there is
the bigger issue out here that we know we are really not impacting.
So, it seems to me that behooves EPA to come back to us and say
look, if that is a big issue, we can try to address it, and maybe we
ought to put that on the list and see if EPA can't give some thought to
that and assist us in this area.
If it is all right with everyone else, then, I think we need to move
on maybe a little bit and start talking about the whole question of
AQRVs and, David, again we have sort of asked EPA to give us a little
more background to work on so that we are hopefully all talking with
a little bit more intelligence. David, do you want to...
MR. SOLOMON: What we would like to do now is we have a
short 3 to 5 minute presentation by Dan deRoeck of the New Source
Review Section to go over the increments and AQRVs, where they sort
of fit in, what the levels are, the type of policy that exists to date, and
sort of get us all up to speed and make sure that we are all speaking
from the same understanding.
Dan?
MR. DEROECK: Thank you, David.
What I am going to put up here is simply a chart that shows the
different significance levels that are either in use or have been
suggested. The first column shows the levels that Virginia is currently
using. The second is the Park Service recommended levels which I
believe Florida is implementing right now. The third column
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rationale than is presently being used for coming up with significance
leve Is.
The first two, the Park Service and Virginia, both relied on the
existing significance levels for Class II areas. The main problem that
I have with that is that those levels really weren't designed to fit the
specific pollutants. They were designed quite a while ago to conform
more with the averaging time regardless of the pollutant that was being
addressed.
EPA's approach here is not really intended to be a compromise
between Virginia and the Park Service, although in some cases that is
exactly what results, but, rather, to come up with a different rationale
that looks at each concentration and averaging time independently.
Basically, those numbers you see there represent levels that are
4 percent of each incremental value. Mathematically, that is simply
how it works out.
The 4 percent has a precedent in that that is how we developed
the significant emission rates years ago. We looked at 4 percent of the
critical national standard in developing the significant emission rates
that are still being used for both PSD and the nonattainment Part D
requirements.
So, you can see in some cases, it is a compromise between the two
values currently being promoted, and in some cases, it is closer to one
or it is equal to one.
We put these up here just so you could see them and to know that
that is a potential set of values that we would propose that would be
in the works right now. We are not obligated to do that, but the
rationale there is to look at each particular concentration and pick 4
percent of the value.
MR. SOLOMON: Dan, can you clarify in terms of the fact that we
are looking at this in terms of potential policy rather than the fact that
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MR. DEROECK: Right.
MR. SOLOMON: What those numbers actually mean today, the
EPA numbers.
MR. DEROECK: The EPA numbers today are really, they don't
mean anything. The policy we have was a result of a response to
Virginia's request to develop national guidance, and their numbers
were presented to us for consideration, and our response to Virginia
was that we are not prepared to adopt those numbers from a national
perspective, but they appeared reasonable for Virginia to use. There
was no obligation that other States had to use them but could choose
to if they wanted to.
Yes, Barbara?
MS. BANKOFF: Could you explain a little more about the
rationale in terms of air quality related values aside from just the
percentage of the increment that they represent?
MR. RAHER: Barbara, I guess one of the questions that maybe
predates or comes before that one is, do these numbers have any
relationship whatsoever to air...to the AQRVs? I mean, where is EPA?
Forget the rationale for a minute and forget the fact that they don't
mean anything now, but what would you be using these numbers for?
Does it have any relationship to AQRVs or...
MR. DEROECK: No, they would be used in exactly the same way
Virginia is using them now. The way Virginia is using them is the
procedurally correct way according to our regulations and our
guidance.
MS. BANKOFF: What I thought I heard Pam saying, and you can
correct me if I am wrong, was that you were looking for guidance not
in terms of numerical, unless they represent something or are symbolic
of some other values through the numbers, but that you were looking
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MS. FAGGERT: We are just looking for a way to determine
whether or not there is adverse impact. It may or may not be a
significance level that is derived from a Class I increment or a NAAQS
number. I didn't say I thought that is what we should use it for at all.
In fact, we are specifically not using it for that.
We are just looking for some set of criteria to determine when
there is and is not adverse impact. It may or may not be numbers like
this.
MS. BANKOFF: But you are not necessarily looking for different
significance numbers, but you...it is just not clear to me.
MS. FAGGERT: No, we are not unhappy with our significance
numbers at all.
MS. BANKOFF: Okay, that is all I wanted to know.
MS. FAGGERT: It is just we are not using them for AQRVs.
MR. DEROECK: And our intent is not to use them for AQRVs,
because those are or should be derived with a different rationale.
These are designed to define when a source causes or contributes to a
violation in the same way that our existing significance levels do in
Class II areas.
The problem has been that we have never had these numbers
available for Class I increment purposes, and the existing numbers are
clearly too large. Some of them, I think, are equal to the increments
themselves.
So, there was never a mechanism for determining what is
significant in a Class I situation.
MR. KNAUSS: I want to ask Dave Hawkins a question here, but
when you say you are not using this for the air quality related values,
it is the stepping stone to that, though, isn't it? I mean, this is sort of
like the predetermination of the determination. Isn't that the way you
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MR. DEROECK: Again, this concept ofburden of proof comes in.
This is exactly the terminology that Congress used, and the legislative
history explains.
MR. KNAIJSS: Well, I am not uncomfortable with it. It is just
that we keep talking about the separation, but this construct is such
that it is the process by which you end up getting to the air quality
related values.
MR. DEROECK: Right.
MR. KNAUSS: And I like the construct, and I think we are going
in the right direction, but I think it is almost nonsense to say this is a
separate process.
MR. RAHER: David Solomon, do you have a comment?
MR. SOLOMON: Let me try to take a stab at explaining this.
These are two separate and distinct requirements, the first one being
that the new source cannot cause or contribute to existing violation of
a standard or increment.
MR. KNAUSS: Right.
MR. SOLOMON: And if there is an existing violation of an
increment, these numbers would be used to determine if the new source
is causing or contributing to that violation for the purpose of
determining compliance with the applicable increment.
That is one review requirement which is distinct from the AQRV,
and that is regardless of the amount of increment that may or may not
have been consumed, the FLM can make a positive finding that an
AQRV is being adversely impacted. When that finding is made, there
is a burden of proof.
MR. KNAUSS: No, I understand. I understand that. I think it
is all clear. I was just trying to follow up with the process, because
once you do make a setting on the increment, significance level or
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MR. SOLOMON: No, this is not determinant of any impacts on
AQRV.
MR. KNAUSS: No, I am not saying it determines it, but it does
set the stage for the debate, basically, by shifting the burden, and once
we figure out how we are going to evaluate the air quality related
values, that burden may or may not be really important, but it seems
right now it is important, and I am all for it.
MR. RAHER: David?
MR. HAWKINS: Specifically, just to show by example, if EPA's
number is at 0.08 or let's use the 24-hour one of 0.2 were adopted, an
application that showed a 0.1 value would, if EPA's numbers were
used, would mean that the burden of proof would be placed on the
Federal Land Manager to demonstrate an adverse impact on air quality
related values.
If just the flat out results of the modeling were used and no
buffer of 0.2, then a 0.1 impact would be contributing. Even a 0.01
impact would be contributing to an exceedance, and the burden of
demonstrating the lack of an adverse impact would be on the applicant.
So, that is why you can't decouple these numbers, let alone what
they are, you can't decouple the existence of these numbers from the
air quality related values issue, because using any such numbers in
those cases where the increment has already been exceeded or will be
exceeded once you take into account the impact of the individual
source, if you use these numbers, it determines who has the burden of
proof on the air quality related values, and that is determinative. It
is not determinative of the outcome, but it is determinative of who has
the burden of proof.
MR. RAHER: Vivian, did you?
MS. MCINTIRE: I think the question has been answered.
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MR. DEROECK: What David is saying is true, and I guess we all
ought to understand that that would be the purpose, and that gives
some importance to these numbers, whatever they may be, but that has
always been the use of de minimis numbers, to decide when a
particular source ought to be a specific and direct part of the solution
rather than saying its impact is not significant enough for it to be part
of the solution rather than the existing sources that do contribute, by
and large, to a known problem
MR. HAWKINS: May I just add a very brief point, though, that
the reason why precedent may not be so relevant here is that the Class
I structure in the Act is different than most other structures, because
in the nonattainment context, for example, there is an absolute
prohibition on causing or contributing to an exceedance of the ambient
air quality standard.
In the Class I context, it simply flips you into another analysis
which is the air quality related values analysis, and therefore, there is
less justification from a legal standpoint for inventing a de minimis,
ignorable impact.
MR. DEROECK: That is true, there is a nonattainment analogy,
but you could also draw another analogy in that if you are located
outside the nonattainment area, we do have a cause or contribute to
analysis that does rely on de minimis impact.
So, the location of the source is also part of how you proceed
with your analysis.
MR. HAWKINS: I agree to using it in the nonattainment context.
I am saying that precedent doesn't suggest that it is equally usable or
appropriate in the Class I context.
MR. RAHER: Chris?
MS. SHAVER: Yes, I just wanted to argue against the idea that
this is not determinative, because I think from a practical standpoint,
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not going to make the political decision to deny a permit based on a
Federal Land Manager's showing that somebody contributes 2 percent
more to what is already an existing problem.
So, by fiat, it does become determinative, and in that regard, I
agree with Dave Hawkins that this is a very different situation. It
doesn't mean someone does or doesn't get the permit. It just switches
the burden of proof, and we can make that distinction.
In that respect, I think it would be helpful for all concerned if
EPA does consider setting...if you are going to set significance levels,
let's do them for AQRVs as well, although I have a feeling they are
going to be very small, but I think until you make some decision there,
the States are going to do what Virginia has done which is say you have
told us we can't use these, you haven't given us other ones, therefore,
we have to agree with the applicant.
And I think you have a very similar analogy when you say the
increment, the cup is full on the increment, we have these levels, and
this decides whether or not someone causes or contributes to it in
situations where we have existing adverse effects that everybody agrees
or most rational people agree are occurring, then this means you cause
or contribute to them as well.
You are going to make the system very squirrely if you don't
apply it both ways. My preference would be to have the zero, one
molecule, but if you are going to do it, do it all around.
MR. RAHER: Don?
MR. THEILER: I have a problem with the idea that somehow at
some point there is not a definition of who has the burden of proof of
demonstrating that there is a problem.
First of all, we need to realize that these things are very, very
poor surrogates to begin with for a AQRVs. The types of problems
that have been identified as AQRVs have very little to do with the
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be a little bit more closely linked to the emissions of TSP, but even
there, the link is pretty weak.
So, even to begin with, we don't have a good linkage here, and if
we are really concerned about AQRVs, we have got to set up a system
to deal with that. This isn't going to do it.
It doesn't get at the people who may be causing the problems, and
if we don't have some sort of system for some sort of de minimis again,
I don't understand what the sources that are applying for the permits
are supposed to do. I really don't know how they are supposed to
begin to address this issue of air quality related values in a systematic
banner.
You can just blow it off and say well, they have got to address it
everywhere in the country for every potential Class I area, but that is
not very helpful to anybody, especially somebody who has got to review
that document when it comes in. That is not helping us in the agencies
that have to deal with these documents at all.
We have got to come up with some systematic fashion. I think
some sort of de minimis level, again, in terms of shifting the burden,
Specially for this, because these are not good surrogates for AQRVs
anyway.
Vicki has pointed out that we have got to use them. They are in
the law. We have got to do something about this. We have got to do
*t, but, you know, we need to do something here rather than just go
around and around and around the circle.
MR. RAHER: You raise a good point, Don, and I guess maybe
Moving on to the issue itself is an appropriate time to do that.
I would ask, Dan, that you make copies of those numbers so that
everybody here would have a copy of them. In addition, to the extent
that the committee feels it is appropriate to get some work groups
together, these numbers and how EPA came up with them and so forth,
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whether these are the appropriate numbers or could be adopted and so
forth.
If possible, I would like to move the committee a little bit over
to the AQRV issue. One thing that seems to be a major issue that
needs to be discussed, Rich's presentation this morning raised it, and
I would like to throw it out on the table for people to talk about now,
and that is with respect to the AQRVs, there is a lot of discussion that
we need some...you know, there are no objective criteria and how do
you analyze it and what is the importance of it.
Let's for a minute put aside who contributes to it and how much
you contribute to it. Is it possible to set objective nationwide criteria
for AQRVs, or, on the other hand, are they so local in nature, i.e.,
Rocky Mountain National Park versus Shenandoah, that it is simply not
possible to do it on a national basis? Maybe it is possible to do it on
a regional basis or on a park basis.
I think a lot of people have talked so far about the AQRVs. I
think we need to have some people who have some knowledge on that
issue try to address that. So, I welcome any discussion...Rich or
anyone else could begin...on that process.
Are we beating our heads against a stone wall by even considering
that there are objective, potential objective criteria for AQRVs?
MR. FISHER: Well, I will chime in first. As I mentioned, we
have in many cases very little detailed information about specific
areas. Yet, our attempt was to try to be as specific as we could for
what we had for each of the 88 areas that we manage.
However, when you begin digging into the data, you just don't
have it, and, therefore, for pollutants like ozone where the effects are
not well known on many of the western species, for instance, in most
cases in the west at these workshops I was mentioning, we simply used
numbers across the board. In other words, numbers in Arizona applied
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However, when you get down to the biogeochemistry of certain
Watersheds, then it becomes a lot more specific, and the answer is yes,
f°r that kind of impact, you can begin drawing the kind of relationship
that is shown in that graph up there.
MR. RAHER: But is that a national kind of a number? Do you
feel comfortable in applying that no matter where anybody sites?
MR. FISHER: No, no. The point was that that kind of graph, as
you may recall, at the bottom had a cation concentration of a certain
amount. Well, we can adjust that, we think, for many of the specific
areas or at least regions of the country.
For instance, Montana's biogeochemistry is going to be
Substantially different from Virginia's, and we can use that
relationship to establish different values, levels of impact that are
ln*portant.
For ozone, though, as I mentioned, it is not as easy. So, the
answer is it depends, and we have done our best in the first cut of
t^ese documents that we have created to draw those relationships the
best we can.
MR. RAHER: And to what extent have those gone through peer
r®view?
MR. FISHER: They are all peer reviewed in the same scientific
Way that all Forest Service research documents are peer reviewed.
MR. RAHER: Mark?
MR. CARNEY: Rich and I have talked about this a little bit. I
8° back to the issue of why don't we do something like we are doing
Wlth SAMI, identify areas where we have similar type of geochemistry
a°d meteorology and other things like that and we have similar air
Quality related values on parks or Class I areas in that area, maybe the
ft
°utheast, maybe the Northeast, the West, and incorporate the Forest
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industry, and focus on that and try to define what those issues, that
AQRVs are for that region.
Then maybe you have to make some finite adjustments when you
go from Tennessee to Florida or Tennessee to Georgia or something
like that, but in reality, you have identified, you know, is visibility a
major issue or, you know, some of the other issues that we have on
AQRVs.
MR. RAHER: Does anybody have any idea how many AQRVs
there are? I mean, how many AQRVs? Is there one for every lichen
that is in the forest?
MR. FISHER: Let me shed some light on, again, the way we do
it, and I speak very colloquially here. I mean, the Park Service needs
to address their approach to this issue, but our interpretation of an air
quality related value is in an ecosystem sense.
In other words, somebody was concerned, for instance, about the
fact that I was showing slides of dogwoods and of milkweed and that
that was our AQRV. We have tried to avoid that. We try to look at
the ecosystem as a whole, how to structure it.
We would ask the question, for instance, is the milkweed and
integral part of that, and how important are the symptoms, the ozone
symptoms, for example, on the milkweed? How important is that in the
structure of the ecosystem?
Now, the Park Service might have a different approach to this,
but ours is that we try to look at it from this perspective. In that
sense, we have established definitions of air quality related values that
have more to do with ecosystem stress and that level of impact than we
do on specific species.
That is not to say that we wouldn't identify...well, let me say first
of all that monitoring or evaluating ecosystem effects obviously is not
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sensitive indicator method, looking for bioindicators or biomonitors
within the ecosystem as indicators of potential stress.
That is where lichens some in. That is where specific species like
Ponderosa pine or other major parts of the ecosystem are important in
°ur analysis.
It is not a straightforward activity. I don't mean to suggest that
can come up with the correct solution. It is simply our approach to
the issue.
MR. RAHER: I take it that for S02 and N02 and so forth, you
have done this analysis on whatever impact it would be on the
specific...
MR. FISHER: We have done it for sulfur, not S02, but sulfur
loadings to the ecosystem, nitrogen loadings, and for ozone effects on
*erre strial flora.
MR. RAHER: Anything on TSP?
MR. FISHER: TSP is not, no, not TSP in the sense you are
linking of. It is the fact that sulfur turns into an aerosol.
MR. RAHER: Okay, so that is how you...okay.
Oh, yes, we keep forgetting about the Park Service over here.
MR. BUNYAK: I would just like to make a couple comments on
*he Park Service approach. We take a more general approach and
define AQRVs broadly, like flora, fauna, water, visibility, and so forth,
aild we don't get into the specific species list on air quality related
^lues.
However, when we make an adverse impact determination, we do
^°°k at the individual species that could be affected. If you have got
black cherry or white pine or lichens or what have you, that is the
r6source that is being impacted, and we look at the effects on those
sPecies, and we look at sensitivity levels and literature searches and
s° forth to find out what are the levels that these resources are being
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MR. RAHER: John, from what you know about the Forest Service
numbers that they have developed, does that number provide
you...forget if you agree with the number right now, but does that
concept of the number provide you with any guidance as to whether or
not you have go to the next step of looking at the black cherry or
whatever it is?
MR. BUNYAK: Well, the Forest Service has a good concept. I
think we have been looking at that and looking at their reports and so
forth, and I think, you know, it is difficult to answer that, I guess.
We are trying to better inventory our parks and to know what we
have. Until we do that, it is...for some parks, we have a lot of data.
Shenandoah and Smoky are the two examples talked about most, but
there are a lot of other parks where we don't have as much data, and
we are in the process of gathering that. Until that research is
completed, it is difficult to say.
MR. RAHER: Any other questions or comments as to the
feasibility? Dave?
MR. HAWKINS: Just a question of clarification to Rich. I
thought that I heard you describe the attempt, as you are doing it, to
try to identify ecosystem stress and to do that by looking at indicator
species that would be the ones likely to show effects and use them, in
effect, as a signal or surrogate to represent the fact that some other
currently undetected stresses are likely to be occurring.
You also mentioned, though, some assessment of the importance
of the particular indicator species to...here is where I wasn't clear,
whether it is to the fabric of the ecosystem or some importance by
some other metric, and I guess what I would be interested in is a little
more clarification on this issue of how you evaluate the importance of
the indicator species.
MR. FISHER: And this is where the art comes in. As I
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constructed such as this,a nd you integrate your scientists with your
Managers, and you have a discussion over these kinds of issues.
Just how important is a certain level of impact, a certain level of
sulfur impact, for instance, to the ecosystem? Have, for instance, the
Majority of the scientists seen important changes in buffering capacity?
It is a subjective analysis. There is nothing that is very bright
line.
I shouldn't say there is nothing. I mean, you can see in certain
areas, for instance, around the L.A. basin, there are clear effects at
Ce*"tain levels of ozone concentration. We can begin drawing some
inclusions as to what the important impacts are.
I would say it is fair to say that it is a consensus method where
We have 30 or 40 people trying to agree on these levels.
MR. RAHER: Any further comments on the question of whether
0r not we can get that significance impact analysis? It seems to be
Such a murky area that no one can...oh, I am sorry. Chris?
MS. SHAVER: One thing, Rich. I think Dave's question was
More how you decide what species you are going to save and which
°nes you are going to give up and do you really feel confident
Managing the ecosystem that way.
I would suspect you don't. We don't even know how a tree works.
* am not sure we understand what its role is in the entire forest.
But one other point I wanted to raise. I think there is a...and
°laybe this is the next question, but it is one thing to have significance
*evels like for ozone which are, in your case, not bad, because most
areas are over that, but how do you look at an individual source's
c°ntribution to that when there is no way to model it? When you have
A
* Precursor derivative pollutant problem, just having those levels out
there, how do you deal with that in a permit application? When you
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recommend a denial, or do you try to show that there is some
connection?
MR. RAHER: Well, Chris, isn't that really the next question? I
think we really to go to that. I mean, if the deadly silence that we see
around here on the significance levels is anything, the next question
really is what happens to the individual source now.
Let's assume we could get a significance level at any particular
area, can you model a specific source in terms of that, and what is the
impact?
Maybe people have actually had more experience with that, and
I think it would be helpful.
MS. SHAVER: Yes, I think the clarification here is that Rich's
levels are not significant impact levels in the same way we are looking
at increments. They are total loadings, so it isn't looking at what one
source does. It has a different application.
MR. FISHER: That is right. We are talking about total loadings
in this process, and the issue you now raise is more of a modeling
issue, and we can talk about that perhaps as a...I would begin drawing
a line and start talking about modeling. Unfortunately, our chief
modeler left this afternoon from EPA, but in answer to the question
about how do we draw the line as to whether it is adverse or not,
perhaps the best answer is by example of what has happened in the
past.
In the case of Virginia, we have certified adverse impacts there.
The cup overfloweth, and we so certified. We did it based on the
litany of criteria that I mentioned earlier. Fish were dying, stream pH
levels were declining such that species were...we were losing species,
and the mixture of...the combinations of different biota was changing.
That, our managers decided, was pretty substantial, and they
stated that. We did the same thing in Live Brook using these kinds of
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I suspect that kind of example illustrates the fact that these
aren't, you know, these do work, and they have allowed us to be up
front, I guess, with people coming in with permit applications and let
them know where we have started...where we start to have concerns.
MR. RAHER: Don?
MR. THEILER: I would like to ask a question of the Forest
Service and the National Park Service if they would feel comfortable,
and it sounds like you are beginning to do this to some extent, in each
°f the Class I areas that you are responsible for, would you feel
c°mfortable putting together a list for each one of those, a list of air
Quality related values so that, if we worked out a system and the
source, let's say, was over the de minimis level, they know that for that
Particular area, those are the air quality related values that they have
§°t to address in their application by whatever method?
As we are talking about this, obviously, some of this is science
and some of it is art, but in terms of drawing some boundaries so that
People know the rules of the game, if you had a list, say, for any
Articular national park, here are the air quality related values,
Perhaps some additional information on what types of pollutants affect
that.
Like if it is acid rain, you may identify susceptible streams or
Susceptible bodies of water and then we would have some indication as
t° how to begin to address that issue. So that you have got a
Guidebook then, and you are not expected to deal with something that
has not been identified that you don't know anything about, I mean,
^chens or milkweed, certain types, things of this nature.
I would just be interested whether or not that would be a viable
°Peration from your perspective.
MR. FISHER: Yes, I think we have started that, and I mentioned
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to be published, and that information also will be part of the EPA data
base that was mentioned by Dennis Crumpler.
MR. THEILER: So, I would be able to pick that up and, say, in
Wisconsin, we have got Rainbow Lake as a Class I area, and it will
have Rainbow Lake in there and it will have a list of air quality
related values for that particular area?
MR. FISHER: That particular one has already been published.
MR. THEILER: Okay.
MR. RAHER: So, the Forest Service feels somewhat comfortable
and has begun to publish and is in the process of publishing some of
those. John, what about from the Park Service standpoint?
MR. BUNYAK: Well, the Park Service is trying to get a better
handle on what is out there in their areas as well. Like I said before,
there is a lot of data on some of our parks, but there isn't much on
some of the others.
So, we send out questionnaires to the parks and try to get, you
know, a better handle on exactly what is out there so we know what we
are protecting.
MR. RAHER: and does the Park Service believe that in some
time frame that is somewhat reasonable...
MR. BUNYAK: It is months away, but we think we can do that.
I guess I still get back to the broad definition, and I guess I don't
know how important it is that we define each individual AQRV. I
think we have got the broad definition, and when we have a case-by-
case basis, if a source is going to impact a certain area, then you look
at the situation and see what is sensitive and what the sensitivity levels
are, and you make a determination based on that.
I see the advantages to having a pre-defined list, but I don't see
that as mandatory.
MR. RAHER: I think all of us have agreed it is not mandatory.
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you know, if we are looking to improve the program, I guess, you know,
the Forest Service has this, and Don raised its benefit in the State
decision making process and to the permittee, and, of course, another
huge area is the national parks.
So, I guess what you are saying is that somewhat of the same data
base at least is in the infant stages of being prepared?
MR. BUNYAK: That is correct.
MR. RAHER: Leslie?
MS. RITTS: I think having the Forest Service list, at least you
have got some...when you know that you are involved with one of these
things, you know what you are shooting at, so to speak, but it leaves
out a lot of the calculus about well, how far is the source away, how
are you going to calculate the impact or whether it impacts in
relationship to time and duration on the value that is presumed to be
Aversely affected.
So, just the fact of having the list for the particular regions is
^®lpful, because at least there is something, there is some rule there
that you know what to do with.
Going back to what Bill said, you know, you need a lot more
Certainty than I think many of us perceive we have, and that gives you
s°me component of certainty, but the real issues with respect to how
^r, how much, how do you model it, what are the tools you use for
Modeling it, that is where there has been so much aggravated tension
between the permitted party, the Federal Land Manager, the permitting
a8encies, and I think that is where the crux of it is.
MR. RAHER: We are slowly creeping to that area. I didn't think
We could jump in there too quickly, but I think we are slowing creeping
to the areas that Chris brought up recently.
Mark?
MR. CARNEY: I think the other thing, as Rich said, you know, we
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consider other sources, not only just point sources. I mean, you know,
Shenandoah has a large mobile component of impact there, and I think
that is one of the things.
Once we start doing this, we really need to focus on the issues of
what the component that we can actually get some benefit out from a
point source, and there may be a mobile source component or some
other source component that we can't do a lot with.
The other issue is the fact that, you know, we are only focusing
on sulfur and nitrogen oxides and that type of stuff, and there may be
a whole other range out here that we find out that there are all other
kinds of toxics or other things that are affecting the ecosystem and may
have a larger impact on it than what we are doing here, but we have to
stay within our box that we have identified right now.
MR. RAHER: Bill?
MR. BUMPERS: Just a follow-up question in terms of it occurred
to me when we were talking about total loadings, and these are air
quality related values that are expressed in some quantitative amount,
but they are expressed in a quantitative amount in the context of how
it affects non-air things, water, flora, fauna, et cetera.
In the process of the modeling in determining these air quality
related values, are we taking in non-air impacts as well? How do you
determine the air quality related value of acidification of a pond
without considering bleachate and soil disturbance and road building
that may be also in some way relating to that?
MR. RAHER: I guess it is my impression that what Rich was
saying is that although it is an art rather than a science, that is the art
of it, is trying to determine when the impact of the air is the
predominant one and not the construction of a new highway system.
MR. FISHER: Many of us are well acquainted with the
atmospheric deposition modeling process with air quality modeling and
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community that is dealing with modeling of the aquatic ecosystems, and
there are some intricate processes, as you imply, going on there.
What we have tried to do with this process is to meet that
halfway. In other words, we are looking at deposition, typically, for
sulfur or nitrogen in terms of kilograms per hectare per year. That
Would be the common denominator, if you want to call it that, between
what is the atmospheric contribution to an aquatic ecosystem that
exists with all these other stresses associated with it.
So, you account for that in one process, use the atmospheric
Modeling business in another process, and then you meet somewhere
in the middle at a common denominator where you can understand what
the interplay is.
MR. RAHER: David McAvoy?
MR. MCAVOY: I was wondering with the list of air quality values
that the Forest Service has created already, have you allowed any
Public comment on the development of those criteria? It would seem
helpful to get as much information as possible, since we are talking
about so many different impacts.
MR. FISHER: This process was announced in the Federal
Register, and each of these meetings complied with the Federal
Advisory Committee Act.
MR. RAHER: And we all know that that is a very effective way
*° get public comment into this process.
Well, what about the issues that Chris was raising, that Leslie was
Rising? One of the things we have on our agenda here is from the
standpoint of a source impact analysis. Of course, we are always is it
*00 kilometers, 200, what is it. But even before that is, is it possible
to model the impact of one source on the AQRVs or on the increments
°r whatever?
I am not a modeling expert, but, again, I go back to my son's
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time I walk into an EPA office or a State office, they certainly have all
kinds of computer models and seem to be doing things.
Is it possible or is it not possible to do that, and is there some
standardized methodology that can be identified that, from a policy
standpoint, the Agency can feel comfortable with and the community
can feel comfortable with?
Don?
MR. THEILER: I can make some suggestions in this regard. I
think you could do something that may be reasonable by identify
individual AQRV air quality related values and then, if there is for a
particular area, an air quality related value, identify some sort of de
minimis distances again and perhaps levels of impact or one of the
other related to the air pollutants that impact that particular air
quality related value.
Let me give you an example. If you are talking about mercury,
and mercury in fish, you may want to go very long distances to
determine an air quality related value, because that kind of compound,
mercury in the atmosphere, can travel fairly long distances. I would
be suggesting in relationship to hundreds of miles.
If you are talking about other types of impacts such as ozone
impacts, it may be a much shorter distance but, again, more than 100
kilometers. Our experience, for example, is that ozone impacts are
derived from sources that are greater than 100 kilometers in distance
but certainly not 300 or 400 miles where you may be talking about the
mercury type of impacts.
If you are talking about some other impact, you have to look at
the specifics, you have to look at the types of pollutants, how they
operate in the atmosphere, and come up with some sorts of rules of
thumb to deal with it so that if a source is within that range for that
particular area, it would have to, in some fashion or another...and,
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the air quality related impacts for the Class I that it potentially may
be affecting.
MR. RAHER: So, you are suggesting...I guess it does have
something to do with modeling, but if we are looking at sort of a
threshold for sources within a circle, that circle may change depending
°n the material or pollutant that we are talking about?
MR. THEILER: That is correct.
MR. RAHER: Andrea?
MS. BEAR FIELD: This is building on something Don said but
8°ing back a bit. People have said gee, wouldn't it be useful to have
a list of air quality related values and all the rest of it. Yes, it would
be useful to have such a list, but what you end up doing is as soon as
the Forest Service puts together its list, it simply becomes a starting
Point and everybody adds to it. It is not an indication that the same
air quality related values are things you have to look at in every single
Class I area.
The next point is okay, so it is an air quality related value, what
ls the adversity level? I think there is a lot of debate on what the
adversity levels are. I know we did track some of the Forest Service
Proceedings, and I will give you high marks for trying to bring in as
^any people as possible and having a lot of meetings, but a lot of the
data are squishy, and that makes it...once you have got the adverse
l!&pacts, you can say all right, the number of species started out here,
and now it is down to...I think you gave an example of 17 down to 1 or
s°mething like that.
Yes, there is something we are concerned about. There is
Adversity. The problem is trying beforehand to say what is the level
tllat you are concerned about. Is it going to happen? Is the adverse
lQlpact going to happen when total sulfur loadings are here, here, here,
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Once it has occurred, you can say well, it is here, and there are
adverse impacts, and, therefore, it is bad, but trying to come up with
that number in advance is...you might think it is a science. It isn't.
So, trying to come up with specific numbers always to shoot for in
every single proceeding, I don't see how you are going to be able to do
it.
MR. RAHER: I guess, you know, and this is an issue for everyone
to discuss, but it is hard. We started out several hours ago with people
saying you know, look, we have got to have some certainty here. The
program has got to be improved. We need to have some bench marks.
You know, if there are no bench marks, then we are back to where
we started which is it is a case-by-case, everybody go in and grapple all
by yourself, but we can't really complain when Don and his people say
I can't tell you what to show me and I can't tell you when you show me
if it is good enough.
MS. BEAR FIELD: I agree with that. I am just saying it is fine
for people to shoot for these, to have these goals, these aspirations.
I think it is wonderful. I am just not sure how realistic it is to think
that you are going to be able to come up with them.
Having said that, that doesn't mean that you don't start saying
okay, as Don was saying, we have got to come up with some realistic
ways of addressing these problems that we do have and that we cannot
always readily quantify, and that is where I get back to one of the
things Don mentioned which is significance levels.
If I have a Class I area and it is stressed and I want to do
something about it, that makes sense. Let's do something about it.
Let's figure out what is the most reasonable thing to do to address
those stresses.
And I get back to once again is that trying to prevent the
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from the Class I area, and unless you have some cutoff, that is what
you end up doing. I just think that you have to have both in tandem.
MR. RAHER: I think we are again beginning to come to some
agreement on the fact that this program can't do it all by itself which
^ one of the very issues you are raising, and it is, I think, a very
aPpropriate one, and if there is not a feeling that, as we said, the ball
in EPA's court, that there can be something out there to address
some of these other issues so that this becomes a rational decision to
be making, then I think all of us are going to start to agree that that
ls a real problem.
I have never heard anybody bring up the issue that Don just did
which is that for different types of pollutants, we may be looking at
different distances from the source, from the Class I area. I have
heard 100 kilometers, I have heard 200 kilometers, and it always seems
to be a number that everybody applies to everything.
Is there any further discussion that the modelers, the Agency
People, the affected sources have as to...does that add too much of a
burden to the permitting process? Has it become too difficult for the
^ates to handle? Is it...has anybody given that any more thought, or
should we just put it on the agenda as one of the new ideas that has
c°me out of this group?
Leslie?
MS. RITTS: Certainly, one of the constructs that you have to
lhink about is if you have a 100 mile radius and you have to model
ev®rything that is over 10 tons in that radius, it gets to be pretty
Unworkable pretty fast.
In other words, it depends what you are modeling. If you are
trying to put everything in the emissions inventory and then try to
Predict what the additional impact is going to be when you add this
new source, the wider the radius, the more equipment you need to be
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MR. RAHER: Don?
MR. THEILER: I would just like to address that. I am not saying
how you go exactly about...I am not saying that, you know, if you have
got a power plant that you are going to build 200 miles from a Class I
area that you model every single mercury source within that 200 mile
radius.
You may only be looking at the mercury emissions from that new
facility, and if there are no mercury emissions, that is the end of the
story. I mean, you don't have to model anything, but you may have to
begin to address the types of coal you are using, the amount of mercury
that is in thein, and whether or not you need to control them to some
extent.
If we are talking about air quality related values, we have got to
begin to get at some of these issues, because this is what is causing the
problems in these Class I areas.
MS. RITTS: I think what you have just stated is a much more
rational approach than a couple of these exercises that I have been
through recently where you are just modeling to model. You are
modeling all of these things, and it doesn't seem to have any point to
it.
MR. THEILER: You are not talking to me specifically, are you?
MS. RITTS: No, no, no, sir.
MR. THEILER: Good.
MR. RAHER: Bill?
MR. BUMPERS: To follow up, the discussion, the way I take it,
is 300 kilometers away if you are worried about mercury, but if you are
worried about...well, maybe not ozone but NOx, maybe you are not
going to look at the source for modeling for N02.
MR. THEILER: Absolutely. You wouldn't. NOx may be, you
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MR. BUMPERS: That was the question I had. You are talking
about staging distance for model requirements depending on the
pollutant you are concerned about?
MR. THEILER: And I am not even saying modeling requirements.
You have to understand that modeling in some of these areas may not
be the way to deal with the issue. It, in fact, may be
counterproductive. You may just get yourselfinto a big bind trying to
do it.
You may have to come up with some other way of addressing that
particular pollutant in the ecosystem, and modeling in the traditional
sense that I am talking about may not be the way we want to try to do
it because of our lack of ability to do it in any sensible way.
MR. RAHER: Chris?
MS. SHAVER: I will pick up on that, because that is what I was
going to suggest is I think modeling for the sake of modeling is silly.
If we have fish that people are being advised not to eat because they
are contaminated with mercury and we know mercury travels long
distances, why are we modeling? Let's just offset, control, or not emit
that.
I would like to suggest that for the sake of simplifying this kind
of approach that in any situation where the Federal Land Manager has
identified that there are adverse effects occurring because of specific
pollutants, the need to model should be thrown out the window. The
issue then becomes a question of the size of the source and the
distance and any offset requirement very similar to the nonattainment
situation, because I think the other big pollutant of concern is ozone.
I would be the last one to suggest we should be modeling
individual source impacts on ozone concentration. EPA has balked at
that for years for good reason. Yet, at the same time, we are seeing
substantial NOx increases around Class I areas with a lot of natural
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problem is something isn't done to control those pollutants, and if we
rely on modeling, we will never do anything.
So, I would suggest in cases where there are adverse effects that
there not be modeling, just offsets.
MR. RAHER: Mark?
MR. CARNEY: I tend to get frustrated when we get into these
processes where we do modeling for modeling's sake and I spend all my
money doing modeling. It seems like I could have spent my money
better off either doing some monitoring for post-construction or maybe
doing some offset as required, if necessary, when you have got an
adverse effect.
It always seems like the only people that get rich off of this are
the lawyers and the consultants.
MS. SHAVER: It is the consultants.
MR. CARNEY: They are not here. Right?
MR. RAHER: That is right.
MR. CARNEY: But that is the point, that when we end up doing
is we end up studying a problem, and we are focusing so much on it we
are not really looking at how do we solve this problem, and maybe the
solving of the problem is finding the mercury offsets at some source
that may be a long ways away, especially when you are looking at some
type of adverse impact, or maybe it is recognizing the fact that we need
more data here, and maybe we should do some post-construction
monitoring as opposed to spending hundreds of thousands of dollars to
figure out if we are 0.007 or 0.006.
MR. RAHER: So, are you suggesting that there is a possibility of
a tiered approach here, you know, at different levels? In other words,
you may be willing to do, you know, maybe sources are willing to do
more post-construction monitoring, maybe willing to voluntarily do
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MR. CARNEY: Right. Let me make a suggestion. For example,
you take the numbers that the Park Service has, and you say that is a
level that would, if you would end up having to do that or you didn't
pass that, you would have to do monitoring level. The other level that
EPA has proposed would be a significance level which would say you
didn't have to do any more air quality impacts or you wouldn't have to
do the air quality related values.
So, you would have a tiered approach very similar under Class II
PSD increments where you look at do I need to do pre-construction
monitoring, and you can get out of that.
Then that would tend to say that, again, you focus on the work on
the new source, but the new source is the one that is in the process of
saying how am I going to get this done as fast as I possibly can, and if
that helps me make it certain how long this process is, that money is
well spent.
MR. RAHER: So, from the standpoint of putting things on our
list, it is a possibility of considering a tiering approach which is adding
more, but it may be most cost effective to the source and also
providing a benefit as well.
MR. CARNEY: Right.
MR. RAHER: Okay. David?
MR. HAWKINS: Getting back to this question of the distance,
there is obviously some usefulness to getting some clarity or decision
rules on distance. For one thing, a source doesn't know which Class I
areas need to receive notification if there aren't some ground rules
with respect to distance. Similarly, the Federal Land Managers don't
have any way of organizing the institutions to provide them with
notification if there aren't some ground rules.
I think there are some tools that are available to help develop
these kinds of ground rules, at least that don't require individual
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has developed, you know, information over the year on transport and
fate of various pollutants.
We also have information on which air pollutants have the
potential for adverse effects on various resources that are found in
Class I areas, either as a result of concentration or as a result of
deposition rates or as a result of accumulations.
These transport and fate analyses that have been done essentially
say well, you know, you put so many pounds into the air, and here is
how fast it comes out. That ought to be the tool you use to decide on
distance values.
If a lot of stuff is still in the air after 200 miles, you need a
distance value greater than 200 miles. If it all comes out in 100 yards,
then for that pollutant, that is the distance value.
MR. RAHER: Vivian?
MS. MCINTIRE: I just wanted to clarify, I guess from my
perspective, some comments that Mark made about po st-co n st ru ct io n
monitoring. I think most people who go for permits would have no
problem with post-construction monitoring as a concept of where you
are testing the validity of what the emission model tells you.
The problem that you have, and I think before we just buy into
post-construction monitoring, is if you are looking at prevalent
pollutants like ozone or like NOx or CO, from an industrial standpoint,
I would not be willing to bet my project on the results of that post-
construction monitoring, because I have no control over what is being
seen. I have no idea that that is my contribution to the situation.
We have addressed this before in discussions about post-
construction monitoring. I personally would be very leery of buying
into post-construction monitoring as a way of getting a permit early,
because I think there are limited resources for most of us who are
looking at new source projects, and we want to know up front with
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One tradeoff might be that as a part of that, with our belief that
we would do post-construction monitoring as an alternative to having
to come back and put on very, very costly controls, you know, as an
either/or but not as a both I will do post-construction monitoring and
then retrofit if I determine that there is an impact there.
MR. RAHER: Don?
MR. THEILER: I would like to respond to one thing that Chris
said, and I want to get clear on this air quality related values. My
understanding is that air quality related values may be listed in
situations where there is not necessarily an identified problem but,
rather, a sensitive resource that is present.
Is that correct, or are air quality related values only listed where
a problem has already been identified?
MR. FISHER: No, an air quality related value exists for all the
88 areas that we manage. It exists for all the 48 areas that the Park
Service manages.
MR. THEILER: So, you may have sensitive species that you know
are sensitive to certain types of air pollutants. There may not be, and
hopefully there isn't or otherwise they wouldn't be there in the first
place, there may not be a problem at this particular point in time, but
you know if you get too much of a particular air pollutant, that species
would be threatened or that genotype would be threatened, genotypes
within that species would be threatened. Is that correct?
MR. FISHER: That AQRV would be threatened.
MR. THEILER: Right. So, the idea that you have to offset every
emission point that would be within that radius that would be
established wouldn't necessarily be true. It would seem to me there
should be a process to identify whether or not the emissions from the
proposed source would be threatening that particular sensitive species
rather than saying well, it is there, you are going to have that kind of
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MR. RAHER: Well, Don, I think, if I could, I think one of the
things that Mark was saying is that when you tier and you even look at
the concept of offsets, offsets become more of a real option once you
get to a level where you know you are probably going to be causing it.
So, in other words, you have either got a very stressed plant or
fauna or something, and if you don't or you seem to have some leeway
or you are high enough above the number, et cetera...I think that is
what Mark was saying...then you don't...it is not offsets for offset
purposes, just like it is not modeling for modeling purposes.
MR. THEILER: Okay.
MS. SHAVER: And I also, Don, when I said if you are over the
adverse impact, if an adverse impact for that pollutant has been found.
MR. THEILER: Right.
MS. SHAVER: Then you skip the modeling. If it hasn't been
found, then you would go through that exercise.
MR. THEILER: Okay, thank you. Maybe I just got straightened
out here.
MR. RAHER: Bill?
MR. PEDERSEN: I would like to speak to the offset issues.
Among the many things that could be said about it, I don't see how it
even works in the context of air quality related values protection.
Where you have offsets in a nonattainment context, they are in
the context of an overall implementation plan that is supposed to put
the total emissions inventory on a declining level. So, the offset
requirement makes new sources make their proportionate contribution
to that overall declining level.
There are no such plans for air quality related values and not
much in the Clean Air Act that you could even think about getting such
plans out of. So, what would happen with an offset requirement for
new sources is that there would be no restrictions on building new
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essence, the offset would become a zoning requirement that would
banish industry from around national parks but would allow people to
build roads and shopping centers and subdivisions there.
MR. RAHER: Let me address the issue as I had seen it when
Mark brought it up, Bill, and I think the offset was not necessarily an
offset requirement. One of the goals we were looking at here is in a
tiered approach, there is the burden of proof that starts to become
established.
You can do modeling, you can do scientific analysis, you can do
all kinds of things to show that you can build there. One of the things
that, you know, you may be doing is saying that a voluntary agreement
to do this kind of an offset, again going back to David Hawkins'
concept that certain things, you know, last in the environment and in
the air and are deposited within certain areas and so forth.
You would have to be doing that, supposedly, to demonstrate that
there is an offset in that area. So, I don't know that anybody said that
this was a requirement of any kind, but it is another methodology for
assuring you the ability to make decisions and go through the
permitting process. At least, that is how...it is just an option that
people are looking at.
MR. PEDERSEN: Well, as a practical matter, we may end up in
that spot. So, as a practical matter, I don't want to speak against it
too much, but it seems to me a funny place to end up as a matter of
public policy.
We have these modeling requirements that are overcooked, seems
to be the consensus and, it seems to me, without foundation in the
procedures for adopting modeling requirements that are prescribed by
the Clean Air Act. In order to get practical relief from those, we will
give sources the option to adopt an offset requirement that consists of
plugging one hole in a boat with four leaks in it.
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MR. CARNEY: I think one of the things that we should do when
we look at this tie red approach is, for example, let's say we are looking
at an area where we have air quality related values and we find that it
could be an adverse...there could be a stressed area, but we don't have
enough data from there. Do we say that okay, first tier says that we
need to have monitoring in that?
And, Vivian, I agree with you. I was not proposing to say that we
do monitoring and then we come back and retrofit on that. What I am
proposing is that you would allow the park or the Class I area to get
more information, and as you continue to get that information, maybe
the next set of data, you find out that yes, you did document the fact
that you have an adverse impact now, and now the next level is to say
there is an adverse impact here, and the next source that comes in here
has to do some type of offset, because we are in an adverse impact
area.
The other biggest problem here is the fact that these have got to
be identified. We have got to know what we are looking at, because
that is how we do planning and sources do planning where they start
looking at it and saying okay, if I have got a list of a Class I area that
has got 15 AQRVs and one of them is we know that it could be a
stressed area for mercury, for example, and I know that I am doing
everything I can do for mercury control, but I probably will have that
impact that could affect this facility, that is going to affect my
planning. That is going to affect how I decide if I want to put a
facility here.
MR. RAHER: Leslie?
MS. RITTS: I wanted to address the practicality of offsets and
mixing apples and oranges, because I think that, as a practical matter,
we are seeing offsets as some kind of salve to this problem. I talked
with Rich and with John's folks and kind of accused them of holding up
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kind of bizarre process of trying to qualify the offsets to show that the
offsets we have got have some kind of beneficial impact on the
particular adversely related value that they are concerned about.
I just think that if we are going to have offsets that we have got
to divorce them from air quality impact analyses as we now know them,
that what we are trying to address is something that has a much more
generalized effect.
You produce an offset, and it may have a good benefit on the
entire park or the forest, but you cannot trace the consequence of
having that offset back to the particular value and the particular pond
and the particular forest that it is related to.
It just doesn't make any sense to do it that way, and if you are
going to go into this, you have got to go into it with your eyes open and
acknowledge that you can't overlay this air quality impact analysis and
the modeling and try to prove that you have gotten what you were
after, because I don't think it is borne out.
MR. RAHER: Don, do you want to address that?
MR. THEILER: Yes, I have a question with the way you were
phrasing that, Leslie. If I understand...or maybe I don't
understand...are you saying that let's say if we identify an area that has
mercury problems, let's say the Boundary Waters Canoe Area has
mercury advisories on walleyes there, so then we say within 200 miles,
people have to address mercury? And if you follow Leslie's idea, you
should offset?
MS. RITTS: Well, I didn't use offsets. All I am saying is I don't
think that you can say that you are going to get some particular impact
from that new source getting an offset somewhere around, producing
a mercury offset someplace, that that is going to help the poor walleye
in the Boundary Waters Canoe Area.
MR. THEILER: Are you saying you don't agree that you should
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What I would see, if you follow Leslie's line ofthinking...I am not
saying I agree with it or disagree with it, but if you follow Leslie's line
of thinking, you get an offset within the 200 miles radius. You don't
have to demonstrate that that offset is going to have an equal impact
to exactly an equal impact everywhere within the area.
You simply get the offset within the 200 mile radius. You don't
have to do any further analysis.
MS. RITTS: Yes, that is what I think that if you are going to use
this kind of tiered approach, and, in fact, that is what I think is
actually happening right now. We are just going through this fiction
of trying to validate the offset that we have gotten, and it doesn't make
a whole lot of sense.
MR. THEILER: I agree with you there. Validating those offsets
is virtually impossible, but I think there is something to be said for
getting an offset.
If you are going to put 20 pounds of mercury into the air within
that 200 mile radius of the Boundary Waters Canoe Area, it is probably
a good idea to offset that.
MR. RAHER: Chris?
MS. SHAVER: I put this up so long ago, and then every time
somebody talked, I wanted to respond to what they said.
At first, I was reacting violently to Leslie's suggestion as
qualified by Don. I think there is a way here to if you did sort ofa not
just distance but direction, all kinds of things. I don't think you would
want to say anywhere within 200 kilometers, because you can have
different patterns, you know, in a circle around, but I think you could
set up sectors, so to speak, and based on distance, size, and direction,
come up with some fairly simple calculus that would eliminate the need
for a lot of modeling.
But what I really wanted to respond to was I was encouraged to
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that would allow us to do this, because I take that to mean you do see
perhaps something in the Clean Air Act that would allow us to do this.
MR. PEDERSEN: Pure legal caution.
MS. SHAVER: And I find that encouraging, because I do think
there is an opportunity here of finding a way in the Clean Air Act to
suggest that preventing adverse effects in Class I areas is a
requirement of the Clean Air Act, as Congress intended it, in which
case it would be the basis for a SIP planning exercise that could get at
those things like the roads and the shopping centers and the movie
theaters on the boundaries of national parks as well as the sources
located 200 miles away.
I think that ultimately is the best planning tool for dealing with
this, but it won't happen unless we force that, because right now, the
regulations are not written that way. I think there is room in the Act
to allow regulations to be written that way.
MR. RAHER: David Hawkins?
MR. HAWKINS: Just on the offset concept, I would just urge that
we be cautious on over-generalizing what methods will work for what
types of offset situations. I think that what I will call regional diffuse
types of impact such as mercury loading may well fit the model of as
long as you get it within a certain radius and a certain directional
sector, that is probably good enough.
There are other types of impacts which are much more specific
and we have to remember what we are doing this for which is to protect
these resources against adverse impacts. If we have a just give us 200
tons, you know, give us our pound of flesh and you get your permit
approach, you are going to wind up losing some resources that aren't
going to be saved by the pound of flesh.
You need to, I think, have a differentiated look at this. You need
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offsets which is consistent with the context of the particular air quality
related value that you are concerned about.
If it is a highly specific one that is due to an impact that is a
dosing based on a concentration that is known to occur because of a
looping plume or something like that, you are not going to solve it by
getting the oil refiner 200 miles away to, you know, upgrade its
cracking to get a little more sulfur out or something.
MR. RAHER: Leslie?
MS. RITTS: I think, David, you are putting your finger right on
what the problem is for the existing methods for trying to validate
some of these offsets. I mean, it just isn't there yet, and I am not...I
think that in the gap, we are interposing some methods just to get out
of this box and keep stuff moving which I, for one, am for, because it
is my clients who want to build this stuff.
But at the same time, I guess, it offends me legally as well as on
a technical basis that all of this is happening when there is just not
much foundation for it, and it is becoming a tradeoff. Well, can we get
you some offsets?
MR. HAWKINS: That is why I am saying that, and I can resonate
to your being offended legally if it is structured so that it appears to
the applicant that this is a pound of flesh kind of routine. That not
only creates problems in accepting it, but it also doesn't do the job in
terms of protecting the resource.
I think that what one needs to do is recognize that, you know,
there are some halting first steps being taken here, but what we should
be striving for is developing a system where we have a more organized
assessment of what resources are at stake, what pollutants are relevant
to them and at what distances and set up mechanisms that would allow
a methodology such as offsets to be used as a genuine way of
substantively mitigating or avoiding the threat to the resource.
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MR. BECKER: This is slightly analogous to the ozone control
program where what Congress did is they decided to do away with
modeling for all of the areas during the first few years and achieve a
pound of flesh from these areas, and the pound of flesh was a 15
percent requirement almost irrespective of whether that area needed
the reductions in VOCs There is a slight exception to that, but
basically it was a 15 percent requirement without having to worry
about modeling.
Then, there was this insurance policy that if this pound of flesh
was not sufficient to demonstrate the attainment of these air quality
related values or increments, whatever you are addressing, then you
have to do more.
Maybe there is some kind of middle ground or some variant of
this that could be pursued where, as a first step, you would do
something in lieu of this modeling that doesn't plug all the holes and,
perhaps as the insurance policy, to make certain that there is this
connection between merely having this offset and protecting whatever
values you are trying to protect you can do more.
One clarifications. There were a couple times the point was made
that there is no provision ...I thought the point was made there is no
provision in the Clean Air Act that addresses roads and possibly
shopping centers near Class I areas.
Well, there should be and there really is with the transportation
and general conformity provisions of the Clean Air Act which do extent
to attainment areas or should extend to attainment areas and do extend
to other areas. So, we should be consistent in this as well.
MR. RAHER: Ron?
MR. VAN MERSBERGEN: I thought that this would be a good
place to get this into the record with respect to offsets. I am not sure
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In certain situations, we have asked for offsets that ratioed them
more generously where there was an uncertainty with respect to the
relationship between the source and the receptor point, and that is a
consideration I think we should introduce into our solution.
MR. RAHER: John?
MR. BUN YAK: I just wanted to emphasize that the Park Service's
recommendation for offsets and the push for LAER better controls has
been primarily limited to just those adverse impact situations where we
have documented adverse impacts. We are not applying it as that
should be a general requirement for all areas.
There are, you know, areas out there where that may not be
necessary, but where we do have the adverse impacts, we think reform
needs to address those cases and focus on those issues, and it may not
be an across the board kind of requirement.
MR. RAHER: David Carr?
MR. CARR: Just to echo, the law is to protect the areas and
avoid adverse impacts. So, the offset has to relate to that in some way.
To the degree that we can assess adverse impacts which we are
doing...it is not perfect, but we are using the best means available ...we
can also assess the offsets that are proposed.
So, it is not different a black box than the black box we are using
to assess adverse impacts. I don't really see the problem. It is two
assessments, but if you have adverse impacts with the first black box,
then you do need to use it again to make sure your offset is
compensating for that impact.
MR. RAHER: John Paul?
MR. PAUL: Also with regard to the existing solutions that are in
the Act, there is the requirement for PSD percent 2 pollutants. That
was actually in the '77 amendments, and it was pursued by EPA. We
had...I hate to be fatalistic, but we had a committee similar to this one
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MR. RAHER: But these people all weren't on it.
MR. PAUL: Lydia was on it.
MR. RAHER: I know.
MR. PAUL: But that was about 10 years ago, and I remember us
talking about parks and the ozone impacts on parks, and one of the
concepts that was talked about was emission density zoning. Maybe
that is something that needs to be addressed.
It dealt with all of the emissions in the area. It basically worked
from the park backward where you would calculate what is going to
adversely impact, what concentration, and then you model what
emissions could cause those concentrations, and you work in zones
outward to limit sources of those emissions in those zones which would,
you know, therefore protected it.
I remember in discussing the advantages and disadvantages, the
disadvantage there was that it is difficult to set up. It takes a big
effort to set up, but once you set it up, it is very easy to manage
afte rwa rd s.
Along Don's concept of different pollutants and different
distances, that would seem to fit in, that if you took the Class I areas
and you set up for each pollutant these concentric circles of emission
density zones, I would say it would be an effort at first, but then you
could simply manage, you know, sources within those zones from there
on in.
MR. RAHER: Andrea?
MS. BEAR FIELD: Maybe it is since it is after lunch, but I am
getting confused about some of the points that have been raised
recently.
Bill Becker raised the issue of the nonattainment program. I look
at the nonattainment program, and I say that is a program designed to
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In that case, you have the 15 percent reductions called for. They
are mandatory. There is almost a determination it doesn't really
matter where within the nonattainment regions those reductions occur,
we just want something now, right away, and then we will worry about
refining it and making sure we are getting it from the right places by
the attainment deadlines.
What I am sensing here, and maybe I am misunderstanding, is
here we are not talking about threats to the public health. We are
talking about something else.
Yet, we are saying well, any offset...first, I would disagree with
the proposition of whether one should be looking for offsets here
legally under the statute, but we same to be saying here it is not
enough that you just get an offset. It has got to be a specific offset.
In order to protect Class I areas, you have got to something more than
you are doing now to protect public health.
That just doesn't seem to make sense. I mean, granted, it is late.
MS. SHAVER: Why not?
MR. HAWKINS: Can I try to work through the logic?
MS. BEAR FIELD: Please.
MR. HAWKINS: The statute says that if a determination of an
adverse impact on air quality related values is made, the permit shall
not issue. What has been suggested and has been done in some
instances is instead of not issuing the permit, the source has been
allowed, the applicant has been allowed to come up with some
offsetting emission reductions which are intended to substitute for and,
in theory, avoid the adverse impact which is the impediment to issuing
the permit.
So, this is simply a way of allowing the permit to be issued, and
it is perfectly logical to insist that if an offsetting emission reduction
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adverse impact, it is perfectly logical to require that offset to be
related to the air quality related value that is adversely affected.
MS. BEAR FIELD: Well, I understand that, and that does clarify
one of the things, but I guess my concern then gets back to I am not
quite sure in all of these instances you are talking about somebody that
is really having an adverse effect on air quality related values. What
you are talking about is being held hostage.
You have the source. It is 200 kilometers away from a Class I
area, and the determination is made that if you want the permit, you
need to get an offset.
It is hard to quantify what impact you are having on that Class I
area, but if you want the permit, you have to get an offset. If you can't
really quantify the impact you are having on an area, it is very hard to
quantify what it is you are supposed to be getting as a result of these
offsets.
It just seems that there are very high standards that are being
imposed here, and the more we talk, the higher the standard seems to
be in order to get this particular offset. The problem I have there is
that you are putting the burden on this new source to try and solve
existing problems when that source doesn't have access.
There may be 400 sources that are contributing to a real problem,
existing adverse impacts on air quality related values. That source may
not have the ability to go and get the reductions the way the State
would or the EPA would if it were able to do it. There are limitations
to what can be done by that individual source or that applicant.
MR. HAWKINS: I think that would be a valid criticism if the
remedy insisted on were to require the source to eliminate the existing
adverse impact, but in most of the instances I am aware of, the remedy
that has been asked is a remedy that says compensate for your added
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that is related to this particular facility, and it is not asking for an
elimination of the existing adverse impact.
MR. RAHER: Rich?
MR. FISHER: At the risk of jumping into basically an attorneys'
discussion here, I am not very qualified to comment, and I just would
suggest perhaps that some of these details are really better discussed
by a lot of technical people, particularly with regard to the modeling,
for instance. Let me just throw out a tidbit there.
Maybe some of you remember 10 or 12 years ago, we went through
a process after the '77 amendments came out of evaluating air quality
models, how good are they, and you may recall that the conclusion was
they aren't very good. Now, this is the gaussian models. They aren't
very good in time and space.
In other words, we can't with much certainty figure out what the
impact of a particular source is on a particular receptor. Up until
now, this Gaussian' model has really been all we have been able to do
in the regulatory community, even for managing Class I areas.
Therefore, to try to do this offsetting thing with any meaning, I
would agree, is a dubious exercise at best.
Now, the question is whether this IWAQM contribution of
mesoscale models on the order of 300 or 400 kilometers on a
side...these a re grids on a side...is going to add any better accuracy and
precision to this whole process, and the answer is that we don't know
ye t.
We intend on coming up with a recommendation by next summer
on this particular model, the IWAQM group does, but we really don't
know how well this is going to operate. So, the argument of whether
or not we can actually do this offsetting process with any certainty is,
I think, still up for grabs.
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MR. ZBUR: I was just going to say that sort of as a matter
of...there has been some focus on the extent to which offsets lead to
their...or what the showing has to be to show that offsets actually will
mitigate an adverse impact. Really, that is the same issue, I think,
that the sources are focusing on in looking at whether their emissions
are, in fact, causing the adverse impact.
So, as a matter of principle, I think you have to use the same
yardstick for those facilities that decide that they want to get out of,
for example, a debate over whether or not they are causing the adverse
impact, and they decide they are going to go out and attempt to offset.
They shouldn't be held to a different yardstick than they are
being judged against in terms of raising some presumption that they
are causing the impact. That was one comment that I wanted to make.
The second one, I guess, was just related to...and, as a matter of
record, the issue that was made on the transportation and the general
conformity regulations. Those, in fact, I don't think will address the
issues that Bill raised, because those regulations only apply to cases
in which there is some type of Federal nexus, meaning that the source
itself requires some type of Federal permit.
So, that is a very limited applicability in terms of control
measures that the conformity regulations impose. So, for example, a
shopping center, unless it, for example, might need a dredge and fill
permit, wouldn't be caught within the conformity web.
That was just sort of a point of clarification.
MR. ZBUR: I am sorry, I misstated that. If it needed a dredge
and fill permit, it probably would be caught under the existing drafts
of the regulations, but if it did not, it would not. So, it is basically a
very limited applicability.
MR. RAHER: Leslie?
MS. RITTS: I felt a need to retort to Dave Carr who said well,
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will use the same one to...and I may be misphrasing that, but at the
risk of wading into something that is technical, unless we address these
models and methodologies, we can't really even come close to any kind
of closure or say we have discussed this issue with any degree of
confidence. We just have to move to those models.
I was interested to hear Rich say that he didn't think that we
knew yet whether the IWAQM exercise was going to be fruitful or not,
because I certainly have heard differently from Federal Land Managers
who have been holding some of my projects hostage.
MR. RAHER: Chris?
MS. SHAVER: I just wanted to get back to the conformity thing
and make it clear to everybody in the room that aren't aware of it that
it is a proposal and EPA is in the process of issuing the final on the
issue of whether it applies in attainment areas or to non-Fede rally
funded projects which I think is still an open issue, and since those of
us who are pushing for greater stringency, we are getting ragged on for
holding permits hostage when there is this whole other system out
there that is supposed to be dealing with the problems.
I would just suggest to the EPA staff in this room that here is one
of those issues that could be there to help these areas that has been
decimated by the Agency and will not be available if that regulation is
finalized, and there is an opportunity here to provide a stopgap
measure through your other regulatory authority.
MR. RAHER: And on that positive shot to the EPA, why don't we
take a 15-minute break and then come back and try to wrap up this
issue and get ready for tomorrow?
(WHEREUPON, a brief recess was taken.)
MR. RAHER: Whydon't we begin bydiscussing a couple ofissues
that remain and then I think we need to probably try and get a short
list of areas that may be susceptible to be considered by small
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Before we get going, though, Rich has just one follow on to the
discussion that we were having and his comments regarding modeling.
We will take that and then move on to another area we haven't talked
about for a little bit.
Rich?
MR. FISHER: For the record, I just wanted to clarify what I said
about utility of mesoscale models, particularly the ones that are
coming out of IWAQM. For that, I really need to bore you a little bit
about some of the details about how IWAQM works. Again, this is for
the record, so you can do something else for the moment if you need
to.
The IWAQM group came up with an interim model called
Mesoprop II. It was published two months ago. It is in the guideline
and air quality models, and the group, the IWAQM group recommends
that this model be used in regulatory processes.
Now, IWAQM is on to a phase 2 model, to developing a phase 2
model. That model is being put together as a construct of several
different modules from different models. It is an off-the-shelf model.
Because of its unknown final configuration, there is uncertainty,
obviously, in how it will perform.
My reference was to that model and the fact that we really have
no idea how will it will perform against tracer data and monitor data.
So, the uncertainty that I mentioned about the utility of this phase 2
IWAQM mesoscale model is with regard to this phase 2 model, and that
model is not due to be presented to the public until about next summer
at which time we expect to provide all the performance statistics on
the model, and we can make some judgment at that time as to how
useful it will be for 165A purposes.
Then, of course, there is the applicability of this model for other
related activities such as 169A, and there may be some considerable
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MR. RAHER: Thanks, Rich.
Unless there is a...I guess I would ask any of the committee
members if there are any additional issues that we haven't even
touched on dealing with the Class I areas and New Source Review that
we ought to put out on the table and try to get views on. If not, we
will probably go into making a list.
We had one issue which I think some of the EPA people raised
which was the whole question of permitting authority and FLM
coordination. I think we certainly have heard from a number of States
that, you know, how the process does revert from some FLM people,
that they don't get notified early enough. So, I think we have some of
those issues, but are there any other issues with respect to the FLM
and the coordination issue right here? Let's stay on those for just a
minute and then maybe get any additional issues.
John?
MR. BUNYAK: I have one issue I would like to throw out and
perhaps discuss at some point which is, what do you do in the case
where you don't have specific information on whether there is going to
be an adverse impact or not? We have been taking the approach that
you should err on the side of protecting the resource and that when in
doubt, you know, not grant the permit.
I would like to throw that out. What do you do in those
situations? Is that an adequate argument, or how do you handle it?
MR. RAHER: Are you suggesting that the data available
concerning the pending permit is not sufficient?
MR. BUNYAK: No, that the data for the Class I area, we don't
have enough information to say whether the new source would cause an
adverse impact or not. There is just uncertainty there. We don't have
effects studies or what have you. We don't have enough information
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MR. RAHER: Do you believe that the cut points that people have
been talking about, either for the question of AQRVs or for increments
in general are sufficient if you are in an area where there is no data
with respect to the Class I area? I mean, is that an area...I guess what
I am asking, is your question sort of subsumed within that type of
analysis, or are you aiming at something else?
MR. BUNYAK: I guess what I am saying is if we don't know what
the sensitive resources are at a particular Class I area or what levels
they would be adversely impacted at. What do you do in that case?
What type of information can be presented by either the Federal Land
Manager or the applicant to make a decision?
MR. RAHER: In other words, what type of tools are available to
analyze that type of situation to see whether action or inaction is
appropriate.
MR. BUNYAK: That is right. It is our position, again, in cases
of doubt, you err on the side of protecting the resource. Obviously, I
am biased towards that opinion, but I would like to throw it out there
and get feedback from other people.
MR. RAHER: Okay. David?
MR. HAWKINS: I just want to mention the issue of addressing
the cumulative impacts of PSD permitted sources, so that would
distinguish it from the accumulation of existing sources and PSD
sources, and I think it is a separable issue, and we don't really have a
mechanism for addressing the potential for adverse impacts on air
quality related values that result not from a single facility but from a
collection of permitted and to be permitted facilities.
In theory, we have such a mechanism for increment consumption
if it is adequately tracked, but even there, there is much that could be
done to ope ra t ion a 1 ize that and make it real, have EPA guidance and
forms and reporting methods to actually come up with fairly detailed
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MR. RAHER: A point of clarification on that. Again, let's
separate the question of are there program s or something that EPA can
start to help us make sure that existing sources are not adversely
impacting this, that the cup isn't getting overflowing. Are you talking
about a tracking mechanism here for PSD or...
MR. HAWKINS: Yes, the issues I was trying to flag were relating
solely to PSD permitted facilities.
MS. SHAVER: Can I clarify that? It wouldn't just be PSD
permitted. It would be sources since the baseline date, because the
vast majority are not permitted under PSD.
MR. HAWKINS: That is right, yes, sources that are consuming
increment and should be evaluated with respect to their effect on air
quality related values.
MR. RAHER: And how that information is both developed and
taken into consideration in any New Source Review decision?
MR. HAWKINS: Well, I think we heard the example that Virginia
is the exception rather than the rule in having an organized increment
consumption tracking system. There is no reason that that should be
the case.
EPA has the ability to set up some ground rules for increment
consumption tracking that has some minimum requirements that should
be met by States, and that should be done. It is overdue, and it should
be done.
Similarly, we need to just conceptualize and approach to the issue
of the fact that there can be cumulative impacts on air quality related
values from new facilities, facilities that have increased emissions
since the PSD baseline has been established, and that hasn't been
done, and we haven't really even had conceptual discussions on how to
do it.
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MR. CARNEY: I want to talk about John's comment about
addressing the fact that you don't have any data for the resource. One
of the things that I would envision there is that what you would end up
doing is you would require the source to have the best controls that
they and then the tiered approach that I was looking at where you
would say you would go in and do monitoring, and you would provide
monitoring resources available to the Federal Land Manager to collect
data to quantify that resource and if there was an adverse impact.
But it would only be done...it would be done as part of the permit
process that says you have identified., you have done the best you
could on controls, and you would provide resources to the Federal
Land Manager for them to do monitoring, and then they would approve
your perm it.
MR. RAHER: Don?
MR. THEILER: I would like to respond to a couple of things. I
think Dave's point on increment tracking is on point. I mean, there is
no reason, especially within the new permit fee systems and everything
else, that States are not tracking increment consumption.
It is just a question of the States doing what they are supposed to
be doing and EPA making sure we do. I don't even think that should
be an issue around the table.
The second thing was brought up earlier, and I would like to ask
a question about it, and Rich brought it up. There seemed to be some
question about the way we are conducting ozone monitoring in that it
is not generating enough information.
I understand the problem with not having ozone monitors in some
of the rural areas where you get the information, but there seemed to
be an issue as to the way we are conducting monitors when we have it.
I don't understand, and that is a question I had.
The third is addressing the point that was made about where air
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the National Park Service. It seems to me that under that set of
circumstances, we need to have a default procedure, and Virginia, for
example, has started a default procedure.
We could have a default procedure which says if you are a new
source above the de minimis level within a certain distance from a
Class I area, you don't get a permit or something like that. It would
certainly put a lot of pressure on for getting the system sorted out so
you don't get that kind of default procedure operational, but that is
the kind of thing, or you don't get a permit or you work something out
with the Federal Land Manager that is responsible for that area, one
or the other.
Otherwise, you throw it to the States, and what the heck are we
supposed to do? If the Federal agency hasn't identified the air quality
related values in that area, why should we have that on our shoulders?
I would like to see a default procedure that is pretty clean and
everybody knows what the rules are.
MR. RAHER: Pam?
MS. MCINTIRE: I guess in response to John who was asking for
comments about...if I understood the comment, it was if you did not
have air quality related values, you erred on the side of being
conservative and suggested denial of the permit. I think Don is
correct. We do need some way of categorizing a de minimis level, if
you will.
I do not think you should penalize people who are trying to build
new sources because there is no data, and I think, you know, I think
industry in general has been supportive of the Park Service, for
example, getting additional resources to help define the problem, and
I think some of what Sandy is working on maybe is helping to define
the problem.
I do not think you should hold industry or people getting PSD
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information showing an adverse impact, there should be no hold up of
that permit
MR. RAHER: Leslie?
MS. RITTS: I would go one step further. I would point out the
statute does not say that you are in a position of not having to prove
that there is no impact. The burden falls to you if there is an impact
to prove that it has been resolved, but if there is no information, there
is no legal authority to hold that permit.
MR. RAHER: Mark?
MR. CARNEY: I think I just want to reflect on the things David
said and Don said. The biggest problem we have in permitting sources
is we don't know what the rules are, and when everything is a case by
case, all of a sudden, the schedule for taking to get this thing done
takes forever.
If we had a default procedure, you know, and we had input
opportunities to define what those default procedures are, we have
monitoring requirements that we have to do, if we know what those
are, then we can do what we need to do.
I think the other thing we have to remember here is that for new
sources, we are talking about...I don't think anybody here is arguing
about the fact that we are trying to put sources in here that aren't
having the best available control technology or control technology on
that is going to be top of the line. I mean, we are not talking about
sources that are trying to squeeze in under a new source performance
standard or something to that effect.
We all recognize in the business we are in today that we not only
have to live with the regulators, we also have to live with the
community. When we live with the community, you know, we don't
want to be at the top of the list when it comes to the right to know in
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So, we are going to do the best we can, and that is sort of the
philosophy that I think we have as an industry, because time is
p robab 1 y.. .t im e is money, and if we are uncertain about the way things
are working, it is going to make it very difficult for us to be able to get
the things done we need to do on time.
MR. RAHER: Well, with that as a perfect lead-in, maybe what we
should be doing is...and also since it might actually get us out of here
a little earlier, why don't we consider putting back up that list that we
had made this morning? Do we still have that, the overhead we did?
Let's look at those issues and the issues we have here. I would
like to pose a sort of a challenge to the committee to identify about
three groupings, if possible, of the major issues that we have here, and
those groupings may serve the purpose of smaller work groups, if you
think they are appropriate, to try to come up with both short-term
improvements that we think can be accomplished via the policy route
and longer-term requirements that we think would improve the program
but would have to go through rulemaking or some more formalized
p roce ss.
We have got...maybe one area to start with is the whole question
of tools that are available to improve the New Source Review program
as it affects Class I areas. In other words, I agree with Rich that many
of us are talking about scientific issues that we are simply not
qualified to talk about.
So, what are the tools and the data available to improve the New
Source Review system around Class I areas?
You know, we probably could put within that, you know, modeling
questions. We could put within that the data available from EPA,
Forest Service, National Park Service. Is there anything else that
could go in that people can think of that we have raised? Pamela?
MS. FAGGERT: I am changing the subject a little bit, but would
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determine when there is adverse impact and, two, to come up with a
procedure for determining, if there is one, whether a new source would
contribute to it or not or cause adverse impact?
The tools things could come under part 2, I guess, although there
are tools under part 1 as well, because, first of all, you have got to
decide if there is adverse impact, and the Forest has a methodology
they are using, the Park Service's is different, but first of all,
everybody has to agree whether there is or isn't one.
And, second of all, you know, if there is, then what do you do
about a new source? Is there a de minimis level? You know, what
tools do you use to determine if there is? Do you have a de minimis
leve 1?
So, maybe that is oversimplified.
MR. RAHER: No, I think that is fine. Is there a way or is it even
appropriate to consider the de minimis level or the cut point issue in
there in terms of is there an impact and, if there is an impact, are the
same people and the same tools and the same issues and the same data
going to be taking the next step which I think David and some of the
other people were talking about which is all right, now that we have
brought you into the system, we have to find out whether or not you
are having an adverse impact.
It may, for purposes of trying to have the most efficient way to
look at it, it may be appropriate to sort of block those together. I
don't know.
Bill?
MR. PEDERSEN: I would like to speak to the de minimis point,
because it seems to have a tendency to escape from one box into the
other box. I think we discussed the issues about de minimis where de
minimis relates to contribution to an increment violation, and that is
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It is a very different issue if you are talking about de minimis
with relation to an air quality related value impact, because before you
get to that, you have to have a respectable modeling method which has
been through the right procedures to quantify what that impact is. If
you don't have that, you aren't even in business, and only after that
can you really begin to think about whether you should have a de
minimis level for applying that approved model.
MR. RAHER: Right, and I guess that is the whole point. In terms
of the discussion here, that is what I would hope that a group could
look at in the vein of what Pamela identified, and that is, is there data
out there to make that decision right now? Is the Forest Service data
sufficient? Does the National Park Service have a program that is on
its way? Does EPA feel that, through a modeling exercise, they are
able to make that determination?
Let's go back to Pamela's proposal again. Can we put down on a
piece of paper a group that would identify...how would we classify it,
I guess, is the question I am asking. How do we classify a group that
looks at the question of is there an impact and, if there is an impact,
how do we quantify whether it is significant enough to go to the next
step of what kind of mitigation or what kind of decision making
process?
I am begging for help, and nobody is out there helping me. Can
you tell I am floundering? I am trying to figure out a way to...as they
say, if it doesn't write, it must not make any sense.
MR. CARR: Well, I think you need to...Pam's suggestion that we
distinguish between is there an existing adverse impact at the Class I
area, I think.
MS. FAGGERT: Yes
MR. CARR: And that approach which the Forest Service is
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does the new source coming in relate in any way to that existing
adverse impact.
Those are potentially two separate areas of pursuit, because one
is outside of, really outside the New Source Review process. It is just
the Federal Land Manager's affirmative responsibility to protect the
resource. They are evaluating what their resources are and whether
they have existing adverse impacts. The other is the PSD process
coming in
MR. RAHER: Right, although I guess we really need the first
before we...I mean, I guess that is what we are trying to identify. Does
the first exist so that we can go on to the second, but I think you are
right.
David?
MR. HAWKINS: I am just wondering whether there isn't even a
preliminary step which is a somewhat more organized system of
inventorying the air quality related values themselves so that we
then...then the second step is then we know what it is that is out there
that may potentially be subject to an adverse impact, but we don't
really have the inventory, and we have the Forest Service work that is
being done, and I think the Park Service is indicating some concern
about lists which I think is appropriate, but there ought to be some way
of at least starting on inventorying the air quality related values.
MR. RAHER: Does that come under number 1 which is adverse
impact, is there one? The first thing we have got to do is inventory the
AQRVs?
MR. HAWKINS: To me, at least, it is a little clearer if you say
one, what are the air quality related values? Two, what are the
adverse impact levels?
MR. RAHER: Okay. So, maybe one of the issues we want to right
down is it is important for us to identify what AQRVs there are
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Don?
MR. THEILER: In the spirit of helping you with your
f o u n d e r i n g...
MR. RAHER: Thank you. I will buy you lunch later.
MR. THEILER: I wonder if we couldn't...I mean, these are the
kinds of issues we need to address, but the Forest Service has already
got guidelines. Could we set up a group that would sit down and, with
them, work through what they have done already and what changes may
be necessary in order to get something along the lines of what we have
been discussing here today and perhaps charge that group with trying
to flesh it out a little bit rather than us trying to get so precise about
it?
I mean, you have already got a process going there, and perhaps
if we could just pick up on that and try to mold that to the kinds of
things we have been talking about, we would perhaps make some
progress.
The other thing is I could suggest a second group which would
look at the issue of the increments and the exceedance of increments
and the issue of de minimis there and what process changes may be
necessary to make that more workable and whether or not...because
that is different than the air quality related values again, and we left
it. We didn't resolve it.
MR. RAHER: Yes?
MS. BANKOFF: Are we talking about the two groups perhaps
going on simultaneously? It seems to me the AQRV one also...I guess
there are some data points in the clearinghouse already within
OAQPS? No? Are you just starting it up?
MR. CRUMPLER: There are in the sense of we do have a
minimal data base. It is actually extracted from a PSD data base that
we have. So, there is some minimal information available, but it is
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MS. BANKOFF: Well, this is a pretty normative process anyway,
determining what AQRVs are, not only in terms of a survey but really,
you know, what people consider values. So, I think it will be a much
more difficult exercise than it may appear, but, you know, it has got to
be done.
So, I think simultaneous groups would make a lot of sense.
MR. SOLOMON: As a bit of additional information, Bruce
Burkowski just mentioned that at least for one air quality related
value, that is, visibility, apparently there has been a finding that
almost for every Class I area, that has been adversely impacted in
terms of visibility. So, that is one thing that the group may want to
look at.
MR. RAHER: John?
MR. BUNYAK: I guess, you know, I understand the importance
of identifying air quality related values and whether there is an
adverse impact or not, but I guess I am a little bit confused as to how
that fits in with the New Source Review reform effort here.
I think we ought to focus on what do you do in a case where you
have identified adverse impacts, and there are a number of those
specific cases. I guess I am a little bit confused on the route you are
proposing here.
MR. SOLOMON: I think what Pat is saying is there are possibly
two sides to the issue, one, identifying and knowing that there is an
issue, adding certainty to that aspect of the review process; and then
the other one is when you know that there is an issue, what methods or
alternatives exist to mitigate that so that the permit can be issued.
MR. RAHER: Chris?
MS. SHAVER: A third one I might suggest is what about in those
cases where there isn't yet an adverse impact, leaving aside the fact
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might there be for a reforming process in those cases as a separate
gro up ?
I see this breaking down into adverse impact/no adverse impact,
and how do we go about permitting in both those cases.
MR. RAHER: We are almost back to Andrea's original proposal
here.
MS. SHAVER: Yes, with the overall threshold issue of what is an
adverse impact, and I have a little concern there. I mean, I like the
idea of our looking at that, but are we the right people? I mean, how
many scientists are in this room? We are more lawyers and engineers.
The Forest Service went through a process and EPA's own staff
go through it routinely with national ambient air quality standards. I
guess I am not sure what we are going to be doing to define what an
adverse impact is.
MR. RAHER: Well, again, remember I think the overall goal of
this is the Agency would like to see this group come back with a
recommendation that there are some short-term things we can do from
a policy standpoint, because there is information, there is data, there
is consensus, we would recommend this.
The longer-term one is we can't address this issue, it is going to
take rulemaking, it is going to take research, it is going to take
increased budget, whatever. And I think that is what they are saying.
You are right. I mean, maybe that is where a group and then
eventually this committee conies down on is saying I am sorry, there is
no way. We think this is a great idea, but it just can't be accomplished
on the data that exist now.
I didn't think a scientific group would get together and, you know,
conduct any studies or anything. This would either have to be
something in existence or people would have to recommend that it has
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MS. SHAVER: Well, the one final point of concern I would have
there with respect to adverse impact is I think the Act, arguably, gives
responsibility for defining what that is to the Federal Land Manager.
You are EPA or we are working here for EPA. The Department of the
Interior has identified criteria it uses, and it ought to be clear, given
that the Federal Land Manager mandates go back to more basic organic
Wilderness Act kinds of things and not just the Clean Air Act that
their definition may differ, and that is what they need to protect
against, and I am not sure that relationship is clear.
MR. RAHER: Well, again, I think that is a very important thing
to protect against, but, again, in the New Source Review permitting, if
there is a way to develop some certainty to at least the State and
Federal permitting authorities are going to look at it this way, and
if...unless they hear otherwise, it is going to be governing any action.
That is probably where it is headed.
Alice?
MS. BOOMHOWER: I don't want to slide by your tools.
MR. RAHER: Good.
MS. BOOMHOWER: So, I have two more to add to that. I heard
inventories and monitoring issues, including...well, I would consider
post-construction monitoring part of that.
MR. RAHER: Okay. Leslie?
MS. RITTS: I think some of the procedural points are what trip
up applicants more frequently than others, and those include just who
gets the notifications and when and when is the analysis done.
MR. RAHER: You know, I think it would be...
MS. RITTS: Those are the things that our simplification can
address.
MR. RAHER: Right, and possibly...
MS. RITTS: We can go back to Rich's original list about
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MR. RAHER: One of the things to do there is to set up a
procedure and coordination issue. I mean, is there a way to put out a
policy guidance or something that can identify procedure and
coordination that everybody agrees on?
MS. RITTS: Right, because if the issues come up early enough in
the application process, then you can get them resolved without a lot
of the controversy that is attendant to the permit getting appealed
during the final comment period and will go a long way to resolving
people's concerns that these things have been considered appropriately
at the right juncture in the project development or that theydon't need
to be considered.
MR. RAHER: David?
MR. HAWKINS: I just wanted to second Chris'point on the issue
of who has the lead on actually doing some of these things. I thought
that what we were doing right now was trying to identify potential
areas that this group might make some recommendations ought to be
done, and in my view, it would be helpful for this group to recommend
that the appropriate institutions that have responsibility try to
structure a more organized inventory of air quality related values.
I think that the Federal Land Managers are the institutions that
should do that, and I think that EPA has an important role in
facilitating an organized way of getting that done, and I think there are
some also some...but I don't think it is the purview of this group which,
I agree, doesn't have very many ecologists around the table, to do so,
and I don't think it is EPA's responsibility to do so, but it would be
helpful for people that are participants in the NSR process, I think, to
make recommendations to the institutions that do have the
responsibility that it would be an advance to get more organized
information.
It would help potential permit applicants know what kinds of
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there are some air quality related values on this more organized
inventory. The sooner everybody knows that stuff, the better off we all
are.
It helps the Federal Land Managers get notification, because if
there is a visible published inventory, it makes it a lot harder for
States or applicants to argue gee, I didn't know anything about that.
What do you...you know, if you didn't tell me, how am I supposed to
know it?
MR. RAHER: Pain?
MS. FAGGERT: I would like to second something Leslie said.
We probably could use some clarification on procedural issues.
By that, I don't mean making changes in the basic law like who
gets to make the adverse impact determination but just the procedure
issues. We have an agreement with both the land managers in Virginia,
and it has helped us a lot to focus on technical issues as opposed to
administrative ones.
With that said, I would be disappointed if that is all we did, but
I think it is something that could simplify the process.
MR. RAHER: Any other comments on some of these issues?
Rich?
MR. FISHER: I was going to say precisely the same thing that
David Hawkins said, and I would only add that when distributing the
responsibilities for providing the expertise that it also be extended, for
instance, to the modelers, be extended to people who would advise you,
for instance, on the use of dosages for ozone as opposed to
concentrations. Those kinds of details, I think, can be delegated and
ought to be, and this group could provide, for instance, the oversight
as David mentioned.
MR. RAHER: Don?
MR. THEILER: I wasn't clear on some of this what we should try
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I mean, I wouldn't necessarily be looking at some of the air quality
related values, but I have got people on my staff who are involved with
that and could be doing some of that and trying to put some systematic
eva luation on that.
So, I am not clear in terms of if we break down into a subgroup
whether or not we would be trying to dig into some of these technical
issues or if we would not, or whether we would still just be dealing
with process like saying we should do some of these things.
MR. RAHER: Well, I think it would be helpful. I think what
David Hawkins was saying is if we sit down and your people and Rich's
people and others get together, they are probably going to come up
with a fairly good list of some of these. They may not get everything.
And to the extent that a list and material can be created that can
be recommended to this agency to be taking into consideration in the
permitting process, we probably should be going to help them and do
that. In addition, however, it is probably accurate that none of us
should think that we would get everything the first time around.
Therefore, the long-term recommendation would be additional
work has to be done in this area. That is personally how I thought it
would probably be addressed.
MR. THEILER: So, what you are saying is we would do some
technical work?
MR. RAHER: That is right, yes.
MR. THEILER: Okay.
MR. RAHER: I would hope so. All right?
Maybe what we can do then since EPA has just been sitting here
all day while the rest of us have been working is to charge them a little
bit with trying to break some of the issues up that we have seen into
a little more of a graphic presentation tomorrow and into some two or
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whether or not we want to move ahead and we want to move ahead in
subcommittee form to address some of these issues.
Then we can address that issue at the end of tomorrow with
respect to both BACT and this issue.
Are there any comments or issues that the public out in the public
section would like to raise that have not been raised or that anybody
would like to put on the agenda or issues that they would like to have
the committee consider?
All right, if not, I think the agenda calls for us to...
SPEAKER: Adjourn.
MR. RAHER: No, no, no. That was quick. I tried to do that, but
David caught me here. We have one more issue which we are moving
up on the agenda, so you can see we are doing good. It is the
presentation on the special NSR rules for modification in serious and
severe ozone nonattainment areas.
MS. RITTS: Is that success for the workshop ending early?
MR. RAHER: That is right.
MS. RITTS: Is somebody going to explain that 1.3:1 thing?
MR. RAHER: Excuse me, Leslie?
MS. RITTS: I said you are going to explain that 1.3:1 internal
offset to us?
MR. RAHER: We are going to ask you to explain it to us.
MR. SOLOMON: What we would like to do now is, since we have
the group together as a Federal advisory committee, and that is you
can feed back to use recommendations and suggestions and essentially
review with us some of the directions we are taking, we would like to
open up to the group our thinking, and very preliminary thinking here,
in terms of the interpretation and implementation of Sections
182(c)(6), (7), and (8) of the Clean Air Act Amendments. These
seconds deal with the de minimis rule and special rule for
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The rules themselves are not that lengthy, but they are extremely
complex, ambiguous. Quite honestly, they are confusing to us. I know
we are not supposed to...not to Bill Tyndall, but we have looked at
these rules, and we find there are various ways they can be interpreted
and implemented.
Most of them are very confusing and very complex, and since we
are here...
MR. THEILER: Are you talking about rules now or the
legislation?
MR. SOLOMON: We are talking about the legislation, the statute
itself.
MR. THEILER: Oh, okay. I thought maybe you had some rules
that I wasn't aware of.
MR. SOLOMON: No. Right now, we are directing the
discussion...
MS. RITTS: Which you were supposed to adopt last year, I might
add .
MR. SOLOMON: ...to the statutory language and EPA's charge
to develop regulatory language implementing the statute. We at this
time do not have regulatory language, even draft language, but we have
mulled over what this means, and we have come up with at least a
straw man staff position, very tentative position. We have come up
with at least a dozen ways of interpreting this statute varying from a
very strict, rigorous interpretation to one that follows very closely to
current netting scenario.
What I would like to do now is turn over the presentation to Mike
Sewell, the New Source Review Section. He will give the group some
background on the de minimis rule, walk through the draft...again, this
is a very preliminary staff draft, walk through the outline of that, and
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take a look at what we have done, come back with their
recommendations in terms of understanding and implementing the rule.
Mike?
MR. SEWELL: Okay, thank you, David.
If someone could lower the lights a little bit, at least a little bit
in the back, we have got some overheads, and it will be a little bit
easier to see them. Also, the overheads are in your packet that I am
getting ready to go over. Also in your packet is a copy of the statutory
language, and also in your packet is a draft outline of a straw man
position that the New Source Review Section is currently evaluating.
We would like for you to take this home with you, review it. We
need your input and any suggestions that you might have. If you could
get your input back to my by August 16th, my name and address is in
the packet on the introduction to the straw man. So, if you could get
your comments back to me, that would help us out a lot.
Today I want to talk about the special provisions for
modifications that apply in your serious and severe ozone
nonattainment areas. These are in Sections 182(c)(6), (7), and (8) of
the Act as it was amended in 1990.
As an overview, these provisions apply to modifications at
existing major stationary sources of VOCs and, presumptively, NOx in
these ozone nonattainment areas that are serious and severe. There
is a new significance level, a de minimis level, if you will, that is in
(c)(6) of the provisions. It sets a level of 25 tons.
As you probably know, EPA in the past has used 40 tons for a
significance level for ozone nonattainment areas, so that is new.
There are several opportunities within these provisions for a
source as it goes through the process and it is still subject to the NSR
provisions, there are opportunities, and I will discuss those in a
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avoid the LAER requirement if you can come up with some internal
offsets at an offset ratio of 1.3:1.
What I would like to do, the actual straw man that is in your
packet, I just want to briefly go through these steps. You really don't
need to try to follow in your packet. The packet is in a little bit more
detail, but I just briefly want to go through this process.
This option that we have is a very preliminary review of the
subject. We have many options. We selected this option because it
does highlight some of the key issues where EPA is trying to develop
policy.
This option is a staff draft. It has not been approved by the
Office of General Counsel. We are still working with them to come up
with a position on it.
We have raised this to our management in the last couple of
weeks and really are going to be working on this real heavy over the
next two weeks to try to come up with a position.
The first step in the process is you look at the proposed project
by itself, and we need an increase...we need to determine if there is an
increase in the net emissions from the proposed project.
To do that, in our straw man, you can use any increases and
decreases that are part of the proposed modification. Once you do
that, there are two cases. Either the proposed new modification by
itself is greater than 25 tons per year. If that is the...if it is 25 tons
or less, less than de minimis, then you go through your special netting
provisions that are in Section (c)(6) of the Act.
If your sum is greater than 25 tons, then you skip the netting, and
you go directly to either the provisions of (c)(7) or (c)(8).
MR. THEILER: I hate to ask this question, but are we talking
about potential or actual?
MR. SEWELL: Potential.
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MR. SEWELL: Right.
MS. RITTS: And when we are talking about from the proposed
modification, what is the source here?
MR. SEWELL: Well, in the straw man right now, it is whatever
the source really wants to propose that is part of the project in this
straw man, and in the straw man, you could include decreases at the
source that were part of the project to determine if you had any
increase.
MS. RITTS: Well, what I am trying to figure out is where you can
get the decreases, because a modification itself is generally only an
increase.
MR. SOLOMON: Leslie, these would be all changes associated
with the proposed project.
MS. RITTS: Okay. So, temporally limited, then, to what you are
doing all at once. You could be delinking something or controlling
something elsewhere, but it is just part of the same...
MR. SOLOMON: Right. You could be removing units and
replacing them.
MR. TYNDALL: Although that is certainly an issue that is
somewhat open as to what exactly is the project at issue. Is it
everything that is contemporaneous? Is it just an actual emission unit
by emission unit?
MR. SOLOMON: But for the purpose of this example, we were
considering all those changes that are associated with the permit
application or the group of applications associated with the proposal,
increases and decreases.
MR. SEWELL: I am going to attempt to clarify that as we move
along a little bit I think, Leslie, so bear with me.
Also, you would look at your proposed project by itself, and if you
had any discrete units that were part of that project, and those discrete
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any other decreases that were part of the project, you would still be
playing the game, and those discrete units, you would immediately go
to (c)(7) or (c)(8) for those units.
So, you would not go through the netting for those projects,
because, by themselves, they would already be greater than the de
minimis level.
MR. KNAUSS: Could we have an example of that? I am having
some difficulty understanding whether we are looking at the source,
emission units within the source, and when we can look beyond the
emission units, or when we must look beyond the emission units.
MR. SEWELL: Okay. Step 1, we were just looking at your
proposed modification by itself. We were not going back in time
looking at others. We were looking at any changes that you were going
to make as part of your application.
MR. KNAUSS: So, let's say I am changing...
MR. SEWELL: When we get to step 2, we are going to get into
the netting. Okay?
MR. KNAUSS: So, ifl am, for example, changing a tank, then the
first think you do is you look only at the tank to see if that change
relative to the tank I have already got is going to result in an increase
of 25 tons or less?
MR. SEWELL: That is correct.
MS. RITTS: But not that the tank itself is 25 tons?
MR. SEWELL: That is right. If you are replacing the tank, if
this tank is replacing another tank, you would get credit for what you
are taking out. That is in this proposal.
If you were just adding a tank by itself and it was greater than 25
tons...
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MR. SEWELL: Yes, you would skip the netting. You are already
significant by itself. You don't need to do netting. You go straight to
(c)(7) and (c)(8).
MR. KNAUSS: Even if you decided that, as an adjunct,
voluntarily, look, we don't want to increase by 25 tons, so I am going
to do something at another discrete unit?
MR. SEWELL: That is right. There are two tests in this step
one. There are actually two tests. You look at the proposed
modification two different times.
MS. BOOMHOWER: Can I try another example?
MR. SEWELL: Sure.
MS. BOOMHOWER: I am going to de-bottleneck a unit. My NOx
on the unit, the process unit go up. As part of the project, I need to
increase iny capacity on the boiler. I drop my NOx on the boiler by
making a modification on the boiler.
Are those two discrete units?
MR. SEWELL: Yes, they are two discrete units. Overall, you
could take credit for the, when determining the whole modification,
you could take credit for the decrease at the boiler, but you still have
to look at individual discrete units to see if those individual units are
greater than 25 tons by themselves.
Once again, this is just one of the options under evaluation, and
it is a good one to get people thinking, so that was one of the purposes
of using this option .
David?
MR. HAWKINS: I think this is the right point to ask this
question. The de minimis language operates in (c)(7) and (c)(8), and
(c)(7) and (c)(8) do relate to increase in emissions, paren, other than
de minimis increases, close paren...
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MR. HAWKINS: From any discrete operation unit. So, the
structure you have got set up is you are defining de minimis in relation
to changes at discrete units. Is that correct?
MR. SEWELL: Yes. That is one of the two tests up front is a
discrete unit. There is also a test for the whole modification. I will
try to explain that as we get into the...
MR. HAWKINS: What I am trying to figure out is whether your
test for step 1 involves looking at reductions in emissions even though
contemporaneous and defined by the source as part of the, quote
project at something other than the increasing unit. You have got an
increase in unit A and some decreases that the source says are part of
the project at some other discrete units.
Does your test contemplate taking those decreases into account
in determining whether the de minimis level has been exceeded or not?
MR. SEWELL: Yes. Let me give you an example.
If you are adding a unit that is 20 tons and you are also across
the plant taking out a unit that is, say, 22 tons. So, for your proposed
modification, you have a net decrease of 2 tons. So, you don't have
any increase.
Also, then you go back and look at the individual unit. The
individual unit, that discrete unit that you added was a 22 ton unit.
Okay? So, since that unit by itself is not greater than 25 tons, NSR
would not apply. You would stop there.
Now, if this new unit you were putting in was 27 tons, for
example, and then across the plant you were going to take out this unit
that was 20 tons, this unit that by itself was 27 tons would be subject
to either, because it is a discrete unit that is greater than 25 tons, it
would be subject to either the provisions of (c)(7) or (c)(8).
MR. HAWKINS: And to go to the next step of complication, if
this unit were initially permitted with allowable emissions at 20 and,
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27, it would also trigger it at that point because of the accumulation
provision. Is that right?
MR. SEWELL: That is the way we would do things under our
current system, hut I am not really trying to...I am not trying to
address in this brief presentation every little in and out and every
little detail.
I really would like to, if you will let me get through the four
steps, let me get past step 1 which is the easy one. Let me get to step
2 and then do 3 and 4, and then we can talk about, you know, different
scenarios, if that is okay, because I think you will see where we are
getting to he re .
Step 2 is basically summing net increases, and this start
implementing the (c)(6) provision of the statute which is the de
minimis rule provisions.
Under this provision, you would sum all the net increases at the
source over a five-year contemporaneous period. Once again, the
significance level, the de minimis level that you are comparing this
summation, this aggregation to is 25 tons. The contemporaneous
pe riod .. .yes?
MS. MCINTIRE: I hate to ask, but is the source a facility?
MR. SEWELL: Yes.
MS. MCINTIRE: The source is the facility?
MR. SEWELL: It is the entire plant, the whole...you look at it
just like you would now under your current netting units.
MR. SOLOMON: When we speak source here, it is all of the units
on the property. When we speak emissions unit, that is the single unit.
MR. SEWELL: It is the plant-wide emissions that we are talking
about.
MS. RITTS: When you are talking net increases, are you talking
credible increases and credible decreases, or are you just talking
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MR. SEWELL: I am not talking about that yet. That is down the
road here, but we are...I am trying to get through the statutory
language first, and then we will tell you what we are going to do. I
will address that in just a minute, Leslie.
The contemporaneous period we are talking about is Act-
mandated, and it says it is a period of five consecutive calendar years,
including the calendar year when the increase will occur.
Once you go through this calculation and you determine that the
aggregate is over 25 tons per year, then you either go to the provisions
of (c)(7) if you are an existing major stationary source that is less than
100 tons, and then there are provisions in (c)(8) if your existing source
is 1 00 tons or greater.
Now, the next overhead we will get to, the key issue which his
how do you credit any decreases that occur during the five-year
contemporaneous period. Under our current netting system and our
n on a t ta i n m e n t program and PSD program, during that period, you can
sum all creditable increases and decreases during the five-year period.
That is under our current netting.
Under the new netting or aggregation option that is under
consideration and that is in this straw man, basically you can only sum
net increases that occur during the contemporaneous period. This
would leave any creditable net decreases during the five-year period,
you couldn't credit those in your aggregation, but you could save them
to be used later on as internal offsets, and we will get to the provisions
for internal offsets in just a minute.
The provisions of (c)(7) once again apply to where you have a
modification to existing stationary sources that are less than 100 tons
per year. This is the group of sources in the VOC...excuse me...in the
ozone nonattainment areas that were not previously regulated as major
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So, if you are subject right off the bat, the Act says that LAER
doesn't apply. All you have to do is put in BACT. So, that is the first
thing.
Now, there is a way to get out of PSD altogether if you are under
100 tons and you are an existing source, and that would be if you
secured internal offsets at a ratio of 1.3:1. If you propose that as part
of your project, you would not be subject to part D NSR anymore.
So, if you are still subject, it is BACT instead of LAER. If you
can get the 1.3:1 internal offsets for either the proposed project in
total or for any individual unit that is part of the project, then you can
get out of Part D NSR.
MS. RITTS: But you can't get out of BACT? That still applies.
Right?
MR. SEWELL: BACT still applies, yes. You only get out of the
BACT if you get exempt from Part D NSR. Part D NSR...if you get a
Part D NSR, there is no technology requirement.
MS. SHAVER: You are subject to Part C. Right?
MR. SEWELL: I am sorry?
MS. SHAVER: No, I guess you are not.
MR. SEWELL: No, you are not, but you are getting 1.3:1 offsets.
MR. TYNDALL: Mike, can we go back to the previous slide just
for a second? I think the question is if you meet the requirements of
the second bullet there, then you don't have to BACT or LAER. Is
that correct?
MR. SEWELL: That is correct. You are exempt from Part D
NSR.
MR. TYNDALL: Under the Federal program.
MR. SEWELL: That is correct.
Okay, Step 4, this is your provisions, the (c)(8) provisions, that
apply if your existing major source is 100 tons per year or greater. So,
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nonatta inment provisions in the past. So, LAER and offsets is not
really new to them .
If you are in this category, then the Part D NSR applies. You
cannot get out of it. Okay? You can't get out of it. If you are under
100, you can get out of the whole thing if you have got the 1.3:1
internal offsets.
However, as an option, if the source wants to, the source could
obtain 1.3:1 internal offsets to satisfy the LAER requirement, and that
would be for either the total proposed project, for all the units. You
could get 1.3:1 and avoid LAER for all the units involved, or you could
take specific units that are involved in the modification,, come up with
1.3:1 internal offsets, and avoid LAER.
The rest of the Part D provisions still apply. You are still subject
to Part D NSR, but you don't have a LAER requirement.
MR. TYNDALL: Are you still subject to offsets?
MS. RITTS: Yes, that is the question.
MR. SEWELL: Well, that is the next slide. There is a key issue
here, key interpretation issue and policy issue to is, as you know, in
the serious and severe areas, your general Part D offset ratios are
1.2:1 for serious areas and at least 1.3:1 for severe areas.
So, the question is, if you are a source that elects to get your 1.3:
internal offset and avoid LAER, the LAER requirement, since the
provisions of Part D still apply, does securing that 1.3: internal offset
to avoid LAER, does that also satisfy the general Part D offset
provision?
That is a key issue in our debate. In our straw man position that
we gave to you, it is determined that yes, you would have to go out and
get the additional offsets in the provision. Basically, under that
provision, you have already used those internal offsets to meet the Act-
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otherwise required by the Act, someone said that could be double
counting if you didn't do that.
So, that is the issue that is under evaluation right now.
That is all of the formal presentation slides. I can take any
questions now if anybody has any. David?
MR. HAWKINS: Going all the way back to step 1.
MR. SEWELL: Okay.
MR. TYNDALL: And starting there.
MR. HAWKINS: No, and stopping there, too, for the moment.
In this implementation option, why do you say that for these
discrete emission units, the new aggregation provisions of (c)(6) do not
apply? I don't understand that.
MR. SEWELL: For the discrete units, they are already greater
than de minimis by themselves.
MR. HAWKINS: No aggregation is necessary.
MR. SEWELL: So, you don't need...you are subject already. You
don't...
MR. HAWKINS: Well, I would say they apply and they are
satisfied immediately.
MR. SEWELL: Right. In this option, under the netting in this
option, since in this option net decreases do not count in the netting
under this option. So,if you are over 25 and you go to netting, there
is no way you are going to get lower.
MR. HAWKINS: You go to aggregation, essentially.
MR. SEWELL: Yes, when you aggregate all net increases, you are
not going to come up with a number that is going to get you under 25
for that unit.
MR. HAWKINS: Yes, I just think, though, stated that way, it is
confusing with respect to another factual situation where you have a
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over 25, and in that case, the (c)(6) aggregation provisions would and
should apply, I think.
MR. TYNDALL: David, when you asked that question, you know,
the language is any five-year period, and I know in Waxman, in writing
about this in his law review article, talked about going forwards and
backwards, but in discussing that amongst ...discussing that notion that
at the time you are going to issue a permit, you are going to look
backwards and you are going to look forward, it sort of became
unworkable to us, for some reason.
Also, if you think about it, if you are just looking backwards, the
fact that a source goes up from 20 to 27, as you mentioned in your
example, when they make that 7 jump, when it is aggregated, it will
catch. It will trigger again, so that they won't get away with it,
whether you are talking about looking forward at the time of their
permitting the 20 or you are talking about it looking backwards at the
time they come forward with the 7.
So, you know, I don't know if you were driving at...
MR. HAWKINS: All I am saying is (c)(6) applies to that
situation.
MR. TYNDALL: Yes, the re has been some...(c)(6) would basically
be your starting point for anything. It is just if you are over 25 and
you can only aggregate increases, then you are out of (c)(6) and into
(c)(7) and (8) already.
Yes, Bill?
MR. PEDERSEN: I guess I would like to ask as to the various
regulatory decision points you reached whether you made them based
on a view...and I know this is tentative ...that this is what the law
required or there was a policy goal that you were achieving or some
combination of both.
I guess, in particular, if I understand this well enough, I would
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increases and decreases in determining a net emissions increase. Then,
of course, if you net out of LAER, saying you also have to get other
offsets.
MR. SEWELL: Okay, those are the two key issues we set forth.
First of all, EPA does not have a position yet on how to interpret this,
and there has been no legal position.
MR. PEDERSEN: No, I understand.
MR. SEWELL: So, this is mainly some options that are being
evaluated within the New Source Review Section.
MR. TYNDALL: But, Bill, I think the tentative legal position is
that, you know, it is compelled.
MR. SEWELL: If you look at the term net increase, if you
analyze the term net increase, obviously, everybody knows what
increase is, but you throw in the word net, and net could be, if you
look in the dictionary, it is a summation which could be increases and
decreases.
A problem, a concern about allowing all decreases is the
possibility, since that may make the provisions of (c)(7) and (c)(8),
mainly your 1.3:1 internal offset provisions almost inoperative, if you
are going to allow 1:1 decreases at a 1:1 ratio in your netting.
So, you know, in evaluating this thing, there is some concern
about taking an interpretation that basically makes the rest of the
statute inoperative in most cases. Just a concern.
MR. PEDERSEN: But ifl could nail this down, on the first point,
the basic concern is that allowing increases and decreases in (c)(6)
would make parts of (c)(7) and (c)(8) inoperative, as you say.
MR. SEWELL: That is a concern, yes.
MR. TYNDALL: Bill, I think the full legal argument would be
that the plain language of (c)(6) plus that fact plus what evidence we
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change netting as it was practiced prior to 1990 in serious and severe
nonattainment areas.
MR. SEWELL: The concept of netting was not in the Act before
it was amended. It was kind of a product of Alabama Power and the
EPA rules. So, to my knowledge, this is the only place in the Act
where Congress has prescribed statutory netting provisions, and what
we are trying to do is take the language that they have provided and,
you know, throw out some options for implementation.
We will be sharing a whole range of options with our management
as my regulatory package that I am working on. We hope to come to
some type of closure, you know, September or October on some issues
and try to get our Part C and Part D regulatory rulemaking out to
publication here in the December-January time frame. You know, our
package is just the Act-mandated provisions.
MR. PEDERSEN: If I might ask, what is the argument that the
other key choice, the offsets don't do double duty, is legally
compelled?
MR. SEWELL: Well, we are not trying to say...well, first of all
I am not trying to say that this option is legally compelled. If the
attorneys want to talk about whether or not it is legally compelled..
MR. PEDERSEN: I am really not trying to pin you down or so
forth, but in terms of understanding where this arose from and
potentially writing comments on it, it is useful to know your thinking
MR. TYNDALL: I think, again, it just the plain language in
182(c)(8). It is also the fact the structure of it seems to be a deal that
is being offered to sources.
If you do...you are in New Source Review no matter what. If you
do internal netting at 1.3:1, you can get out of LAER. In that light, it
compares to 182(e)(2) which is a companion section for extreme ozone
nonattainment areas which offers a deal of sources that if you do the
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offsets, not LAER, but it is clearly written to be, you know, you do the
internal offsets to get out of one of these two major requirements of
being in nonattainment.
I should also say that there are ways to interpret this provision
that allow you to use decreases in (c)(6) but still make (c)(7) and
(c)(8) have meaning, and, in fact, there is an internal debate going on
within EPA. What I was describing as legal positions were tentative
legal positions written up by an attorney at OGC who is no longer with
them.
MR. PEDERSEN: No longer with OGC or no longer with EPA?
MR. TYNDALL: He is no longer with the OGC.
MR. PEDERSEN: The Agency is still stuck with him.
MR. HAWKINS: And, arguably, no longer an attorney.
MR. TYNDALL: There are policy rationales for why this makes
sense. I mean, basically, it is just eliminating the bubble in serious
and above nonattainment areas, but we are certainly trying to come up
with a way of interpreting this that is workable but isn't going to make,
you know, make every permitting writer and reviewer quit.
So, we are cognizant it is a very complicated provision.
MR. SOLOMON: I just want to point out that the purpose of the
straw man here is to flesh out the issues and concerns that we are
wrestling with. It is not necessarily the Agency's position, and in terms
of defending it, all we are doing is giving you one of the options that
we have mulled around for the purpose of hearing back from the group,
either as a group or as individuals, what makes sense and what doesn't
make sense with the key or the eye on trying to keep it simple and
understandable and implementable.
MR. PEDERSEN: But still so your client's needs are met.
MR. TYNDALL: Of course, you have already done that.
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MR. SEWELL: On the issue that you asked Bill about, you
wanted some more specifics on the LAER exemption. Without this
exemption, if you are in a severe area, you would have to get a 1.3:1
offset and put on LAER. Okay? That is the normal thing.
Now, what source...and in most cases, most sources get their
offsets from modifications from their own source. In general, I think
most sources do that.
So, really, if you took the position that you are asking about, if
you took that position, then these sources would have 1.3:1 offset and
avoid LAER. So, you would have in the larger sources, everybody
would elect to do that, and you would not have the technology
requirements. You know, you would be giving up the technology
requirement for no added benefit.
MR. HAWKINS: Can we hear a rebuttal to that one? Why is it
that...
MR. PEDERSEN: One rebuttal is, and we certainly heard this
expressed eloquently by Mike Barr last time, is that the wave of the
future should be performance-driven approaches to New Source Review
where if you get suitable plant-wide applicability limit, that becomes
your baseline for New Source Review, and you don't have to worry
about every little change having its own little device on it.
And this interpretation would certainly do a lot less to further
than the alternate interpretation.
MR. TYNDALL: Bill, that is a very good point, because how does
this compare to plant...I mean, how do you reconcile 182(c)(6), (7),
and (8) with a plant-wide emission limit?
MR. SOLOMON: And I could tell you what a former attorney told
us, that a plant-wide emission limit would not necessarily override.
The de minimis rule would most likely override any plant-wide
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MR. PEDERSEN: Sure, if it was clear, it would since it is in the
law and the other isn't, but we are talking about the proper
interpretation.
MR. SOLOMON: What I would like to do now is move on to some
of the other members in terms of their comments. David?
MR. HAWKINS: I also want to focus on these two issues, and I
will take the second one first in terms of the cred itability of offsets.
It seems there that you have...that the strongest argument that this is
compelled is the definition of what is creditable as offsets in 173
whatever it is, (c)(2) which is that reductions otherwise required by
this Act shall not be creditable as emission reductions for offset
requirements.
If you are claiming an exemption from LAER because of the
provisions of (c)(7), you have to meet a requirement, and that
requirement is a requirement of the Act, and it can't therefore ...and
if that is what you are using those reductions for in order...if you are
cashing them in to avoid LAER, then you are doing that to satisfy a
requirement of the Act, and it is not creditable as offsets, and it is
right there in black and white.
So, I don't see that there is any legal controversy about that one.
You will have to...you will earn some good money if you can get around
that one, but, you know, lots of luck.
With respect to the first issue, that again, you know, you have to
return to the legislative history and the fact that (c)(7) and (8) are in
here. The purpose of putting in (c)(7) and (8) was to establish
limitations on the use of netting in these more seriously polluted
areas. The legislative history was that groups like ours were
advocating an absolute bar on the use of netting in even less polluted
non-attainment areas. We weren't able to get that, but what the House
side did compromise on were these provisions which were intended to
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Now, if you let a fully creditable set of reductions come in at 1:1,
you have effectively eliminated the restrictions on netting and made
(c)(7) and (c)(8) essentially meaningless. I think the fact that they
would be essentially meaningless is a compelling argument against that
interpretation.
MR. SOLOMON: Bill?
MR. BUMPERS: I sort of have a question that relates to the 1:1
and I am not sure that I understood the last point you made, David,
about the 1:1 offset. As I understand the straw man proposal, the 1:1
offset comes in step 1 if you are less than 25 tons at a discrete
emissions unit. Is that correct?
MR. SEWELL: That is correct. When you go to the netting in
(c)(6), you would only look at other net increases.
MR. BUMPERS: From the project.
MR. SEWELL: At the source over the five years. You have
already established what the proposed modification numbers are. You
have already established that it is, say, 23 tons increase.
MR. BUMPERS: Right, over the five-year period.
MR. SEWELL: No, you are just looking at the proposed
modification by itself. If it is one unit, it is 23 tons. Okay?
Since that is obviously not 25 tons by itself, so you don't have to
worry about that. So, now you have got to go to the netting provisions,
these special netting provisions and determine if, in the aggregate, as
a result of this modification, there is going to be an increase that is
greater than 25 tons.
MR. BUMPERS: Right.
MR. SEWELL: So, when you go back and you look at the five-
year period, you look at other net increases. Obviously, if you had a
net increase that was 2 tons or 3 tons, actually, your aggregate would
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would be subject to either the provisions of (c)(7) or (c)(8), depending
on...so, the next step (c)(7) or (c)(8).
If your existing source was less than 100 tons per year, since this
is a modification, then you could avoid NSR completely on that 23-ton
unit if you could come up with a 1.3:1 internal offset.
So, you take 23, multiply it by 1.3, and what is it? Close to 30.
So, if you could come up with a 30-ton internal decrease, then you
would avoid Part D NSR completely by getting that internal offset.
If you happen to have this 23-ton increase and you are at an
existing major source that was 100 tons or greater, then the provisions
of (c)(8) apply. Part D NSR applies.
Then, you the source say well, I can either get...let's just say you
are in a serious area. Well, I can either get my regular 1.2:1 offsets
and put on LAER...of course, there are some other little requirements,
but we won't talk about that. It is your choice. I can do that, the
normal review.
Or you are looking, and you say well, there is an option. If I
come up with some more offsets internally, I can get out of LAER.
You are going to look across the plant and say well, I have got this
other source. I have been wanting to shut that thing down for years.
If I shut that...you know, the cost of LAER for this new project is
expensive.
You have got a choice. You look across the plant. I can shut this
source down. I can get my 30 tons there, or I can put some controls
across the plant that is a lot cheaper maybe than paying the money to
put on LAER and get my 1 ; 3:1 internal offset. So, you have options.
MR. BUMPERS: But didn't we also just determine that 1.3 is not
sufficient? Then you still have to look at an additional 1.5 to 1.2.
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MR. BUMPERS: Well, 1.2 here, because we are in serious.
Right? So, in total, we are looking...you would have to find like 1.5
offsets, 1.3 internal and 1.2 external or internal.
MR. SEWELL: Right. That would be if you selected that option.
You would not be spending money on LAER, though.
MR. BUMPERS: Right. Now that I feel good about that, let me
go to the next question which is identifying these emission units, and
let's say I have got a boiler on which I am going to do a, quote,
modification which is going to increase my NO, emissions, but
simultaneous with that, before it ever hits air, I do some burner
modifications so that my actual NO, emissions are not going up.
It is sort of related to Alice's question about the bottleneck plus
control. Are those discrete projects or discrete emission units here?
MR. SEWELL: Well, you go back to step 1 to determine if you
had any increase, any increase in net emissions.
MR. BUMPERS: "W ell, 1 know, but to determine that, you have to
determine what the emission unit is here, and the question I have got
is if you have got a project that you then control...
MR. SOLOMON: Bill, I should point what we are looking at here
are general concepts to implement the rule.
MR. BUMPERS: Right, well, I know.
MR. SOLOMON: Not necessarily specifically defining what is an
emissions unit.
MR. BUMPERS: I can appreciate that, but the question...I mean,
I guess without trying to get too specific, and I threw that example out
because I thought it was not too specific, because I don't want to get
into well, gee, I have a project in mind and would this work, but I
guess more broadly, how are we going to try to define this emission
unit? I think that is going to be a really important determination.
MR. SOLOMON: You are right. It is an aspect of this type of
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strategy tor implementing the de minimis rule. Once their strategy is
defined, then we can look at the implications of that regarding
individual units.
MR. BUMPERS: Fair enough.
MR. TYNDALL: And in looking at this issue, I mean, we have
looked at whether you could possibly be as generous as everything that
the source brought to you that is contemporaneous, you know, whether
anywhere on the plant. That is what is at issue. That is the net
increase that is at issue that then you would look to see whether it is
over 2 5 or not.
Something that broad, too, it is just a change at a disc re te
emissions unit. So, that is a range, and we haven't internally resolved
which is better or which policy or legal.
MR. BUMPERS: Okay.
MR. SOLOMON: Let me take Don who has been waiting.
MR. THEILER: I have got one very simple statement. I am very
confused.
MR. SEWELL: That is a sign of intelligence.
MR. THEILER: I really would suggest that you put together some
diagrams with specific units at a total facility and the different
situations that are potentially going to arise, because sometimes when
we are discussing this, I think I understand it, and then it slips away
again.
MR. SOLOMON: WE can provide you with that. Actually, Mike
did have a very detailed example, and because we wanted to just here
outline broad strategy, broad concepts, we tried to reduce it to as...
MR. THEILER: But I can't even think broad strategy, because I
don't really understand what we are talking about here in some of
these situations.
MR. SEWELL: I really didn't expect you to grasp this in 15 or 20
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MR. THEILER: Good.
MR. SEWELL: No, really, I am serious. I didn't expect...
MR. THEILER: I have managed to meet your expectations, then.
MR. SEWELL: I really expected just a few people that maybe
were kind of tuned into the issue to be able to discuss it. I mean, it
took me six months to be able to talk about it. After group therapy
and a few other things, it took that.
MR. THEILER: Another specific question. On the second bullet
there for step 1, ifyou have...let's just call it a tank. You have got a
tank that is emitting over...let's say this tank emits 50 tons, and you rip
it out, and you put in a tank at that specific location that is a direct
replacement for that full tank, and this is a 49-ton tank.
Now, does that meet...how does that deal with number 2? Has
that netted out? Is that a 1-ton increase or a 49-ton increase?
MR. SEWELL: The tank you took out was an actual emissions of
49 and the new tank is going to be a potential 50? Is that it?
MR. THEILER: No, the new tank is 49. I am sorry.
MR. SEWELL: It is a 1-ton decrease.
MR. THEILER: Is it a 1-ton decrease, or is it a discrete unit of
49 tons?
MR. SEWELL: If the old tank was 50 and the new tank is...
MR. THEILER: 49.
MR. SEWELL: 49, there is no increase.
MR. THEILER: Sure there is. There is a new discrete unit right
there that is 49 tons.
MR. SEWELL: No. Within our straw man, within the straw man
proposal, we would allow room for replacement units, for you to take
credit for replacement units within the straw man. It could be within
the...
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MR. SEWELL: That is a decision. It will have to be a decision.
You said you took one tank you took out and you put the other one
right on the same spot.
MR. THEILER: Right.
MR. SEWELL: Another option we have would be not to give
credit at all for anything for anything you take out.
MR. THEILER: Right.
MR. SEWELL: That is another option.
MR. HAWKINS: Can I ask Bill Pedersen's question? Is that
legally compelled, or is there a policy basis for that? And what is the
language in the Act that allows this interpretation.
MR. SEWELL: Well, you look at (c)(7), and it says any change,
and then it refers you to other than de minimis, and then you look back
at (c)(6), and it talks about increases in net emissions from the
proposed source.
So, it does refer to the word net increases from the proposed
source, aggregated with all other net increases.
MR. HAWKINS: Yes, but (c)(7) also says results in any increase
in emissions of VOC from any discrete operation.
MR. SEWELL: Right.
MR. HAWKINS: And the parenthetical has to be read to relate
to that increase from any discrete operation.
MR. SEWELL: Right. That is our number 2 bullet up here where
we would say...
MR. HAWKINS: This is really what I was trying to explicate
earlier on. You essentially have a concept ofde minimis increase that
is broader in its scope than the concept of increase from a discrete
operation.
MR. TYNDALL: You have the problem of reconciling those two
phrases. You said earlier that (c)(7) and (c)(8) incorporates (c)(6),
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MR. HAWKINS: Yes, but there is a way to read them that is
harmonious which is that an increase other than a de minimis increase
from a discrete operation refers to a common scope which is the
discrete unit, and you look at any increase from the discrete unit, and
you look at any de m in im i s.. .ot he r than a de minimis increase from the
discrete unit. Both of them relate to the discrete unit.
MR. TYNDALL: But how does that answer the question, though,
if the project at issue is, you know, a modification, you know, a new
widget maker at a discrete unit that...or the existing widget maker with
some bells and whistles put on and also some controls put on? You get
to count the increases and the decreases. Right?
MR. HAWKINS: Yes, but let me...in the context of (c)(7) why
this approach not only makes textual sense but by it makes sense in the
structure of (c)(7) is what (c)(7) is, boiled down, is a special netting
rule. Instead of having a 1:1 netting, it is a 1.3:1 netting. That is all
it is.
Logically, it is kind of tough to defend an interpretation that says
you can use 1:1 netting to avoid a 1.3:1 netting requirement, and that
is what you would be doing.
MR. SOLOMON: Vivian?
MS. MCINTIRE: Just a question. Does this work within the
context of RACT requirements for particular sources?
MR. SEWELL: I don't think this has anything to do with RACT.
MR. SOLOMON: Are you talking about reductions achieved
through RACT?
MS. MCINTIRE: Well, I am talking if you do not have to put on
LAER, is there a gap here of the States having to require RACT? I
mean, say you build a source and you don't put on controls. Is the
State then mandated to come back and require you to put on RACT
because of your category so that you end up having only the
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MR. SOLOMON: What this does is remove the LAER
requirement. Any otherwise applicable SIP requirement would still
apply to the unit.
MS. MCINTIRE: So, if you are in a RACT category, okay.
MR. SEWELL: No, the offset criteria says you can't use anything
for offsets that is otherwise required by the Act. So, if you...
MR. SOLOMON: I can't speak to the RACT rules here to the
extent they would or would not cover this unit. All we can speak to is
the fact that the LAER requirement would not apply, but that is not
going to have, as Bill just said, it is not going to get you out of RACT
is RACT is otherwise applicable.
MS. MCINTIRE: Well, I am just thinking if you put in a new
source, say you put in a new boiler and there is a RACT requirement
for boilers. Okay, you have built a new one now and you are not going
to put on LAER, and maybe you are not going to put on anything,
because you have offset it someplace else.
The State in their policies have to implement RACT in
nonattainment areas. So, they are going to come back to you and say
I don't care what you did over here under New Source Review. We
have a requirement to implement RACT on this source, because it is
in the category.
I am just asking, you know, how this would fit together.
MR. SOLOMON: I would assume the same would apply for the
new source performance standards.
MS. MCINTIRE: Yes, yes.
MR. SOLOMON: You know, all otherwise applicable SIP
requirements still apply.
MS. RITTS: So, what have you saved yourself?
MR. SOLOMON: Well, you have saved yourself the LAER
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181
MR. SEWELL: You have to remember this is an option that the
source will look and see if it benefits them. They can put on the
standard LAER and get the standard offsets. This is an option. It is
not a requirement that you have to get these internal offsets. So, there
will be individual source decisions.
MS. MCINTIRE: Are we looking at potential emissions being
with control?
MS. RITTS: If they are federally enforceable.
MR. SOLOMON: I think we sill have one or two people who
would like to comment.
MR. ZBUR: I just have a really quick question. On the timing
for measuring the net decreases, I am assuming that the straw proposal
anticipates that you would go back the full five years? And, I guess,
does it also go forward any period of time in terms of what you can
count as a decrease after you get into the netting scheme?
That is one question. The second question...
MR. SEWELL: Going forward, it would be any decrease that was
part of your project that was going to be a decrease by the time the
proposed source began operation which would be creditable.
MR. ZBUR: And it goes back historically the full five years?
MR. SEWELL: Yes, that is what the straw man would propose.
MR. ZBUR: Okay.
MR. SEWELL: But, really, in this straw man, we are really not
trying to spend a lot of time on the five-year period. That is an issue,
but it is not really a key issue.
MR. ZBUR: Well, the question is whether or not you have to do
new things that were not anticipated at the time or, you know, that you
may have already done, whether you can take credit for reductions that
have occurred at the facility. That was sort of what I was focusing on,
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182
MR. SEWELL: Under this proposal, decreases in the past that
were net decreases, you couldn't use those in the netting under this
proposal.
MR. ZBUR: Well, I guess that was the reason I am focusing on
this, because is it the point to get those decreases subject to the 1.3:1
offset, or is it to basically eliminate credit for all of the past
decreases?
MR. SEWELL: You wouldn't be eliminating credit. The credit
would be discounted at 1.3:1.
MR. ZBUR: Okay. The second one was that you indicated that
the increases were measured on a potential basis. I think you
indicated that the decreases would be, too. Did I hear you correctly
or not?
MR. SEWELL: Decreases would be based under our current
scheme. We haven't had any discussions about changing our current
actual to potential.
MR. ZBUR: Okay, I thought I misheard you.
MR. SOLOMON: Are there any more questions on the issue?
Yes, Bill?
MR. BUMPERS: Just one follow-up sort of as a rejoinder. I like
your interpretation of the way (6), (7), and (8) interrelate. It strikes
me that David's interpretation reads any meaning out of...I mean, there
is no reason to have had (c)(6) if the whole concept of net emissions
for determining whether you are de minimis is read out or is read the
way he reads (6) and (7). So, hang in there, guys.
MR. SOLOMON: That is the policy act we are trying to juggle.
MR. SEWELL: Let me ask just one more important thing. It is
important to note the difference between our current netting and this
new provision. Under the current netting we have now, the
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183
a 40-ton...so, the modification by itself has to be greater than de
minimis before any netting is triggered.
Under this new special provision, all you have to do is have any
increase. Okay? So, that is tougher right off the bat. If you have a
10-ton increase from the modification, that triggers the netting. It is
important to note that.
MR. SOLOMON: Again, I would like to stress that the purpose
of this example is really to ferret out, raise the issues, bring them to
the front. If you would like to comment specifically on the straw man
approach, we appreciate those comments. If you have other
suggestions or interpretations for the rule, we appreciate those also.
Mike has set forth a time frame. I believe he would like to hear
your comments by August 16th. What we would like to do is solicit
these comments from the individuals in the group and interested
members of the public.
MR. THEILER: David, is there a more detailed discussion of this
or something? As I indicated, I am not sure I understand it, and it is
hard to comment when I don't understand it.
MR. SOLOMON: Mike can provide with a little bit more detailed
write-up of at least this straw man or aspects of this straw man. If you
so wish, we can provide you with that, but, again, right now, we are
wrestling with the broad conceptual understandings and approaches for
implementing the rules, and we really haven't wrestled with the issues
of what is an individual emission unit, for example.
MR. THEILER: Oh, you haven't? Sounded like you did.
MR. SOLOMON: Internally, at least.
MR. RAHER: All right. That sounded like it was an easy one.
MR. SOLOMON: Where were you?
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184
I think I would like to solicit once again any public comment we
have on the material that you have just heard. If there is, we would be
happy to take that now. Obviously, as Dave said, the Agency is
soliciting written comments on it to try to help them along, so please
feel free to submit comments that way as well.
I would propose that unless any committee member has additional
issues that they would like to raise that we adjourn early, not for our
benefit, but because we gave EPA the assignment of trying to come up
with a couple of subgroups or a couple of outlines for tomorrow
morning on Class I areas, and we need to give them some time to do
some work.
In addition, we, of course, are all going to go back and look at
that BACT material carefully before tomorrow morning.
So, if there are no other comments, we will adjourn until 8:30
tomorrow morning.
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185
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TRANSCRIPT OF PROCEEDINGS
U.S. ENVIRONMENTAL PROTECTION AGENCY
MEETING OF THE NEW SOURCE REVIEW (NSR)
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CLEAN AIR ACT ADVISORY COMMITTEE
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July 22. 1 993
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NEW SOURCE REVIEW
REFORM SUBCOMMITTEE MEETING
July 22. 1993
MR. RAHER: In starting out this morning, I would like to
propose the following. We gave EPA the task last night so that we
could get out a little early and enjoy the evening the opportunity to go
back and try to coalesce some of the ideas that the committee talked
about yesterday, and it seemed that a lot of the discussion was
breaking down into two areas.
The first one was existing sources and their impacts on Class I are
recognized to be a very significant issue that needs to be addressed and
how that can be addressed under existing programs or new regulatory
programs within the Agency and that that is really beyond the charter
and scope of this committee.
At the same time, this committee's concerns about working on the
New Source Review issues would be a lot more easily adopted and
could proceed hopefully earlier if we knew the Agency was going to do
something along those lines on existing sources.
So, with your permission ...I left it up in the room...I think it
would be nice if the committee could consider some language after
lunch that is a recommendation to EPA that existing source impacts,
that some form or structure be considered within the Agency to address
that issue and that the agency take that and consider that and come
back and report to us at the next meeting as to whether or not we can
expect the agency to undertake that. They will have to consider that
within their own organization.
So, that would address one half of the issues we were talking
about yesterday.
The second half of the issues really started to fall out into
basically three groups, and EPA went back last night and tried to put
those together, and they might form the basis of some subgroups that
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2
I would like to do two things: first, have Bill Lamason walk us
through how EPA sort of put the issues together and what these three
subgroups look like.
Then I would like each of you to just consider which of these
subgroups you might be willing to serve on in order to assist us in
developing a recommendation to EPA and a recommendation back to
this committee at the next meeting.
I don't think we will ask right now this morning for everybody to
give us a show of hands, because as the BACT discussion moves on, we
are likely to be developing some of these same subcommittees, and
right after lunch, we probably will give a shot at looking at both BACT
and the Class I issues, see if we can divide ourselves up a little more
efficiently, and then try to form those subgroups and how they should
operate, and then go ahead and continue our BACT discussion this
afternoon. Various people have planes at different times, so we want
to make sure that everybody has a chance to participate in the various
subgroups.
So, with the committee's agreement, we will proceed along that
line. Is there any discussion in terms of that general format?
Good. Why don't we have Bill start out by giving us sort of a
rundown of how he tried to organize and categorize our aimless
ramblings yesterday.
MR. LAMASON: Thank you , Pat.
We went back to our office for a little while last night. We didn't
work till midnight. We worked a few hours, couple hours. Scratching
our heads, we came up with three groups, and we tried to take the
issues that had been identified and sort them into these three groups.
The way we looked at the process is from the perspective of
getting a permit for New Source Review. Given that premise, we came
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3
Procedures and coordination for getting a permit for a source
which has Class I area impacts;
Determination of the adverse impacts for both increments and
AQRVs. That is what is in the determination, technical information,
and so forth, the criteria involved in the adverse impact determination;
Then, the mitigation of the source impacts in order to issue the
permit to that source.
Let me add that while you might not see the exact words of some
of things you wrote up on the overheads yesterday, we tried to make
sure we covered all those issues. If there is a sub-element to the
issues we have written up here or perhaps the same thing worded
differently.
On the procedures and coordination, this is where we think this
group would look at the FLM permitting authority coordination issues.
The administrative burden to the permitting authority, both the
existing as well as any burden which might result from New Source
Review impacts.
We would take up the aspect of pre-application meetings between
the applicant, the permitting authority, and the FLMs. This group
would just consider what we can do in terms of issuing guidance or
information clarifying the roles of the various parties, the permitting
authority discretion and obligations, the FLM responsibilities both to
the permitting authority and the applicant, as well as the applicant's
responsibilities to the FLM and the permitting authority.
Then, this group would also take up any public participation
issues.
Moving now to determination of adverse impacts, as I said, this
is an attempt to take care of both the Class I increments and the
AQRVs issues by determining what is an adverse impact. The
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4
AQRVs and to what extent they can be quantified. So, it is analyzing
and reviewing the FLM screening values that were discussed yesterday.
Considering the existing adverse impacts that exist today, when
is an area adversely impacted prior to the new source coming in? What
are the levels of acceptable AQRV changes where the area is not
already adversely impacted by existing sources.
And what in the way can be done in terms of disseminating
information through AQRV clearinghouses or other mechanism.
Moving on to the significant impact levels test, the next thing we
would put under this subgroup. That would include the significant
levels for increments as well as some sort of test for significant levels
for AQRVs such as the rules of thumb concept introduced by...or
expressed by Don Theiler yesterday, these distance pollution
relationships.
They would also take up the ozone impacts as well as other non-
increment criteria pollutant impacts, the burden of proof issue, and
this issue of delayed indicator recovery which I don't think was
discussed much amongst the group but I think was raised to me
personally, and this is the concept of when an AQRV indicator is going
to have some sort of time delay in recovery even if emissions are
drastically reduced. An example is pH in streams.
Cumulative impacts. This is the aggregated sources versus single
source issue, the full cup analogy that David Hawkins was expressing
ye ste rda y.
I might add that if we have any questions, we can try to take
them. Raise your hands if you have any questions while we are going
through this.
Dan deRoeck and Dennis Crumpler deserve a lot of credit,
because they were helping me last night, and they can probably more
adequately discuss some of these points if we want to clarify anything
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5
Then impact of N0X emissions would also be handled by the
adverse impacts subgroup.
Finally, we have the last subgroup. This would be the mitigation
of source impacts to issue the permit. This would be the offsetting
requirements, emissions offsets versus air quality offsets, e.g., the
modeled impact. Validation of the offset, is there a net air quality
be nefit.
They would also take the control technology requirement. I think
the FLMs expressed yesterday or John Bunyak that we should maybe
consider control technologies beyond LAER or additional BACT
considerations. I shouldn't have said beyond LAER, beyond BACT,
additional BACT considerations.
Then limits to the new source obligation, how far should the new
source have to go, particularly in terms of installing control technology
when there may be existing source impacts.
I guess the last thing I want to add in considering these, where
some of these issues could be dealt with, there was our sense that some
of these could have fit in either category, and some of these issues
seem to be somewhat cross-cutting, but this was sort of our best shot.
Any questions or clarifications?
MR. SOLOMON: I would just like to add one item there, and it
probably fits best under mitigation of source impact, and that is the
issue of the role and use of post-construction monitoring. I believe
that was raised by numerous subcommittee members yesterday.
MR. LAMASON: Yes, we considered that at some point. He
wants to put it under mitigation, and I think we considered putting it
under adverse impacts, but we will put it under here for now. Maybe
that one slipped off our table when we were working last night.
MR. RAHER: Thanks, Bill. Again, remember our goal here is to
eventually on these issues, not necessarily, unless we can of course,
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6
committee to EPA on what we think are viable short-term and,
hopefully, rather rapid changes to improve the program and those
which, as a committee, we believe simply are either so complicated or
so fact-specific and resource intensive that they have to be handled
through the regulatory process or, in the worst case even, through
additional changes to the Clean Air Act itself which I am sure we
would all like to reopen and bring into Congress, but that is sort of the
goal.
So, if we could just take, you know, as you are looking at this this
afternoon and this morning and during the lunch break, just give some
consideration to the ones that you could possibly serve on and give
some assistance to, that would be appreciated.
Why don't we move then into what today's discussion is which is
the selection of or the issues surrounding BACT and LAER. Dave or
Lydia, unless there is something that the agency wants to start out
with, I know that we have a couple of parties that would like to place
some examples on the table for us to start at least considering and
looking at that will hopefully raise these issues in a more concrete
manner.
David McAvoy, I think you have some presentation that might
help us focus a little bit, and then I think, Andrea, there were also
some other issues in your paper yesterday, and we will get to those
a f t e r.
MR. MCAVOY: Okay, thanks. Yes, I do. I have got a couple of
real world examples, I think, that could shed some light on some of the
problems that are occurring in the PSD permitting process from the
BACT standpoint.
The two examples that I am going to use, you will notice that the
underlying theme of it all is the question of certainty. It is not
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7
controls. It is a question of can the source plan their project with
some sort of certainty.
The first issue I would like to address is the area of cost
in feasibility, that aspect of the BACT analysis. That has been
particularly problematic for our company, because there does not
appear to be reliable information that is out there to allow one to
determine what is unreasonable costs, nor are there any guideposts.
I know that this is particularly difficult to develop in a data base,
but the example that I am going to use will show you that if we don't
try to address this in some form, it can really hurt some companies.
I think the problem that we are seeing here is that the process of
trying to analyze something for cost infeasibility is, in many ways, more
subjective than perhaps the analysis one would do for technical
infeasibility. So, I would imagine that is why we see a lot more
disputes over this than in other areas.
Given that it is more subjective, I think that is another reason
why we need good criteria.
The example I want to use deals with a building that we have in
Indianapolis. It is a process R&D building, and they want to do an
expansion about eight months ago to this process R&D in order to try
and evaluate new pharmaceuticals and see whether we could come up
with some new cures.
Although the particular facts in this case dealt more with a RACT
than a BACT issue, I think they are completely analogous to the BACT
issue.
We found out that...the engineers came to me and said that it
would cost over $1 million in order to achieve the level of cost to meet
this particular RACT standard, or you could insert BACT in if you like.
They said however, this particular expenditure would only reduce
actual emissions by about 8 tons per year, because in a process R&D
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8
If you look at the cost per ton ratios, depending on which
consultants we dealt with, some said it was $18,000 per ton. Others
went up to $40,000 per ton.
So, the plant was trying to make some decisions about where is
the best place to be spending money, is it better for us to spend $1
million to control emissions elsewhere in our company or here.
So, we approached the local permitting agency in this situation,
met with them, put everything on the table, and came up with an
understanding that this was unreasonable, and we proceeded through
the permitting process and the public notice, and about six or seven
months went by. The whole time, the schedule for trying to get this
R&D done is ticking away.
The last day of the public comment period. In this case, the City
of Indianapolis got a letter from the State agency saying no, no, no, we
need to reevaluation all this cost data. They need to go out and get
more quotes. We don't necessarily think that this is unreasonable.
So, now we have a situation where right now, the plant is almost
held hostage which is something that Andy was talking about a little
bit yesterday as well, because we are being faced with trying to get this
process R&D expansion implemented and spending $1 million that
appears to be un reasonable.. .in fact, some people in the agencies have
said they think it is unreasonable, including the city...or challenging
that and delaying this entire process which makes it particularly acute
for a construction project.
The solution, I think, and which we would like to see is for the
data base out there, whether it be the BACT/LAER Clearinghouse or
something else, to have some information or some requirements on
people to put dollar per ton decisions that were made in permitting
situations and, to the extent possible, have the regions or EPA
headquarters try to make some sort of determinations about what is or
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9
In fact, in this case, we heard that LAER was like $12,000 a ton,
hut everyone that would talk to us about what the cost range was we
were planning would always stipulate well, we are just telling you this
off the record. We will never put this in writing. You will never get
anyone from the agency to tell you anything.
The second thing I think that we need to do in addition to having
hard dollar per ton data and whether or not that is reasonable or not
in the data base is we need to try to better flesh out the criteria that
one uses in trying to look at the economic feasibility prong of the
BACT analysis.
In particular in our case, we had it thrown back at us that maybe
$1 8,000 to $30,000 per ton is unreasonable for a very small source, but
you are a large pharmaceutical company, and even though $1 million
might doom this one project, you would have enough ability to
assimilate this cost.
Once again, we are back into this nebulous world of trying to
determine what to do, because there are no criteria out there. No one
is talking about it.
So, I think if we could try to get...those are two recommendations
in the cost area that I think would help.
The second example I want to talk about is the technical
feasibility prong of the BACT analysis. In particular, I think technical
infeasibility issues become most acute for at least our company in the
area of technology transfer and leading edge discussions of what is the
best control technology.
The example that I can think of best once again isn't necessarily
a BACT example, but you can insert BACT into it. It was a PSD
permitting project that we had over a cogeneration facility down in
Puerto Rico, and it dealt more with monitoring devices that were going
to be required in the PSD permit than the actual technology, but as IL
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10
In this particular case, the agency was proposing using NO, CEMs
on this heavy fuel fired cogen facility, and this particular cogen facility
was the largest of its size in the world, and we were doing an expansion
to it.
We had talked with some of our consultants, and they said
although NO, CEMs are widely available out there, we can't guarantee
that you are going to meet, for instance, a 90 percent data quality
availability in the permit on this because of a variety of exhaust stream
characteristics and acid gas corrosion.
In fact, we had looked throughout the world and found that no
one had really used NO, CEMs for our particular application. One
pharmaceutical company had tried it on a smaller version of this, and
they were failing as this permitting process with us was unfolding. So,
that made our concern even greater.
Well, as we got into negotiating this, once again, we found the
project delayed because no one could give any guidance or make any
decisions. Every time our consultants came up with a reason why it
was either too costly or technically infeasible, we got the agency
coming back and saying well, we think we heard over in this part of the
world a permitting project that did X which refutes your argument.
So, we would send our consultants out trying to track that down,
and I think we had like five or six of those, and in all five or six, the
facts weren't as the person who was attributing the rumor to had said
they were, yet it delayed everything.
Well, ultimately, in our particular case, the agency came back and
said we don't care, you are going to put the NOx CEMs on or not. The
only thing that we can tell you is that for this technology transfer, this
innovative technology, if it doesn't work, we will work with you, and
maybe we will reopen the permit.
Well, as a lawyer for the company, that created a problem for me,
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II
you don't challenge your permit at the time that it is issued that, in an
enforcement action later, you are not going to be able to day the
monitoring data is infeasible and things like that.
So, we said this to the agency. Don't make us go through a PSD
permit appeal. We don't want to. If you are truly going to work with
us if this stuff fails, then let's write this into the permit.
No, we are not going to do that. Prosecutorial discretion will
work.
So, we appealed the permit and delayed the project another eight
or nine months. Ultimately, there was a good result in the case,
because the agency agreed to settle it by putting a provision in there
saying that if this proves out to be technically infeasible, we will not
come back after the source.
I guess the point that I am making here is that for innovative
technologies, whether they be monitoring devices or control devices,
you might find sources more willing to experiment or technology force
if the agency up front would discuss how they were going to deal with
the situation if the technology doesn't work as it is predicted.
You can imagine the situation we are in where we have
contractors out there who won't write contracts guaranteeing
speculative stuff, yet we are getting permits that are requiring it. If
we could get some of those provisions in the permits up front, then I
think you would see less appeals. I think you would see less delays
from sources.
So, those are the two examples to frame some of the issues today.
MR. RAHER: Thanks, David. Just to try to recap a little bit here
just so we make sure we understand, under the reasonable cost
situation, you are basically saying there may be a basis, whether it is
the BACT/LAER Clearinghouse or some form, that it would be helpful
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12
developed and available to the public and permit writers and sources
that could be used as a yardstick in this kind of analysis.
MR. MCAVOY: Right. I think there are three aspects to the cost
thing that I would like to see. One is what you just described where
we have a dollar per ton in the Clearinghouse, and with that I would
like to see some decision making from the Agency on what they think
is unreasonable or not, because I have to advise my clients about what
is reasonable.
MR. RAHER: And that was a second issue which was some type
of policy criteria, if one can be developed and available...
MR. MCAVOY: Right
MR. RAHER: That would give an idea for cost criteria as to what
is appropriate or inappropriate.
MR. MCAVOY: Right, and within that, a subset of that one is if
you can't come up with a decision on what is an unreasonable cost per
ton, then at least frame what the criteria are that the source has to
use. What is this issue of are they going to come back and say this is
unreasonable for everyone out there but you because you are a big fat
cat?
MR. RAHER: Right
MR. MCAVOY: And then the third thing within the cost area
would be if we can't, if it is too burdensome on the Agency to come up
with the data, then at least let's define where the source has to look,
because, as you can see from both of my examples, we were constantly
being buffeted around the country or even the world trying to track
down rumors.
If we could say you look at the BACT/LAER Clearinghouse and
all the permit decisions in Region V, that would help.
MR. RAHER: And the second issue on technology transfer, you
were both looking at the question of technology transfer and how it is
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as the issue you just brought up which is where do you look to identify
what is the best.
MR. MCAVOY: Right and providing certainty to the source. I
think that if you have the agency just up front say were are not out to
penalize sources. If something that is innovative that we think works
fails, then let's put it in the permit, and I think that the agency would
benefit from it.
MR. RAHER: Let me just add onto that from my own experience.
Again, this goes to the BACT, more to probably the LAER issue, but
it does fit, I think, nicely into David's second point, so I will throw it
out just for purposes of later discussion.
In fact, sometimes I think I see requirements almost being a
roadblock to innovative development and technology development. The
example I will use is one in which let's say at the present time in a
coating operation you have got the primary way to reduce emissions is
through incineration and so forth.
The operation, the managers and the people planning for plant
renovations and so forth just don't like the operational costs. They
don't like all of the things we dislike about that add-on technology.
So, they go back to their coating vendors, and they say listen, I
want to meet the standard. I have got this standard in my permit, and
you have just got to change my base materials. That is just all there
is to it, and if it is going to cost me $1 million, that is fine. I am going
to put that money up front right now and come up with a better
technology.
I think a lot of times I see that that results in going back to the
agency and the agency saying we really appreciate that $1 million
investment in that new, but now look what we can do when we add that
technology onto this new innovative coating.
Really, there are a lot of people who are saying I am just not
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this different technology, and I think it goes to what you were saying,
David, on innovation and technology. I mean, there may be something
that we have to look there in the source process about how you make
those changes.
I guess maybe the next easiest thing is, Andrea, if you could walk
through some of your examples, and then we will have them all out on
the table and we can start a discussion of the issues.
MS. BEAR FIELD: Before I do that, maybe as a lead-in to that,
I want to talk about one of the things that Dave mentioned, and that
was this idea of certainty.
I guess I am concerned about what it means to be certain, because
yeah, EPA could come up with criteria and say $30,000 per ton
removed. You spend that amount of money, by golly, you will get your
permit.
I am afraid that certainty may mean the most stringent
requirement, and if you want to do something less than that, then you
have got to go through all kinds of gyrations and additional work.
I guess I approach the process with a different perspective. In
putting together my hypotheticals, I tried to take into account the
audience here, so I put down hypotheticals involving permits we had
been involved in, in Wisconsin and in Virginia, and also I tried to use
language that EPA had put together and some guidance back when
David Hawkins was assistant administrator for air programs, because
I liked it, and I wanted to remind him of those wonderful words he
used back then.
I guess my perspective...
MR. HAWKINS: Everyone makes mistakes.
MS. BEAR FIELD: David, I agree you have made mistakes, but
you didn't make them back then. You were absolutely right.
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MS. BEAR FIELD: Our perspective is that the statute says case-
by-case determinations ofBACT where the State is the decision maker.
The State or the permit issuing authority which, in many cases is the
State, is the one that gets to look at all the different factors and to
weigh them.
At the last, I guess it was, at the March meeting, I remember Don
Theiler saying something about if you put all the information in front
of me on what the technologies cost, how effective they are, all those
things, I can look at them and I can see what BACT is. Kind ofl can't
tell you in a vacuum, but if you put all this information in front of me,
it really...I don't want to say it jumps out, but sometimes one
technology, one approach emerges as the one that, weighing all the
factors, is the best one.
And I guess our perspective is one that says we think that is the
way the system ought to work is you put all this information in front
of the permit-issuing authority and let that authority make the
decision. That authority shouldn't be told it has to choose the
technology that is most stringent just because a company is, like Dave
McAvoy's company, big and can afford it.
It shouldn't be told that you should take the least stringent
technology just because that is what the company wants, it is the
cheapest way out, but you should look at the full range, and then on
the record, looking at all these things, be able to do the balancing that
makes sense in that particular case.
The hypothetical that I put together on this one is one where a
company wants to build a 300 megawatt coal-fired power plant. In
putting together its PSD permit application for the facility, the
company compiles information on three NO, control alternatives for
the plant.
Specifically, the company determines that if it installs
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be able to meet the current NSPS emission limitations of 0.5 to 0.6
pounds per million B T U and will have a maximum annual N O x impact
of 1.5 micrograms per cubic meter. I picked that because that is over
the significance level. Also, that happened to be what we found at one
source we were permitting in Region III.
If the company installs advanced combustion controls, combustion
controls but not add-on controls, it could meet an emission limit of 0.3
pounds per million BTU, about 50 percent less than the starting one,
at an additional cost of just $100 to $300 for each additional ton of
NOx removed. Its maximum annual NO, impact under this scenario
would be 0.75 micrograms per cubic meter which gets you under the
sign ifica n ce level.
Finally, if the company were to take the next step and add the
most extensive and expensive controls available, SCR, selective
catalytic reduction, the proposed unit would be able to meet a NO,
emission limitation of, let's say, 0.15 to 0.17 pounds per million BTU
at a cost of $2000 to $4000 for each additional ton of NOx removed,
and its maximum annual ambient NO, impact would be 0.25 micrograms
per cubic meter, a reduction even more below the significance level but
still insignificant.
The series of questions I have and I was hoping we could get some
resolution on was the process that you follow in determining what
technology to look at. Do you look only at the most stringent control
technology option, that is, the installation of SCR, meeting an emission
limit of 0.15 to 0.17, and specify that as BACT as long as it is
technologically and economically feasible for the company to install
the technology and meet the limit? That is the top down approach.
Assuming that my company has deep pockets, then since somebody
else had said they could meet that since the technology is available,
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What if the perm it...the second one. What if the permit applicant
claims that meeting the NSPS isBACT and the permit issuing authority
would accept that finding without further analysis? This is what I
think EPA has described as the bottom up approach. You simply have
the permit applicant coining in and saying here is what NSPS is. We
can't go below that. We think that is good, because it is cheap.
And the air quality impacts? It is just a little bit above the
significance level. Let's go with that.
The third approach would be what I call the full range option
where you look at the full range of technologies. In that, the permit
applicant submits to the permit issuing authority information on all
three technologies indicating the emission reduction effectiveness,
cost, and ambient impacts of each of the three technologies.
The applicant would also provide any other information relevant
to the energy, environmental, and economic impacts and other costs
associated with application of the three different NOx controls. The
permit applicant would indicate how it believes the various factors
should be weighted and, thus, what BACT should be for its proposed
facility.
The permit issue then would consider the impacts and the costs
of the options, decide how much weight to apply to each one, perhaps
taking into account any local preferences...some local preferences
might be how close it is to a Class I area...and based upon its analysis,
decide which control option it believes is best for the specific permit
applicant.
Clearly, by the way I stated the options, it is clear which one I
think is BACT, and that is the third where the permit issuing authority
takes into account all of these factors and can make the determination.
If that is the option, though, people have to recognize, and I
think there is a resistance to accepting this, that different States may
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when it came up with BACT which is to be made on a case-by-case
basis with the States or the permit issuing authorities making the
decisions.
It is possible that two States will make a different decision, that
one could say, perhaps because the facility is near a Class I area or
perhaps because a lot of the increments have been used, we want you
to go to the most stringent technology available. Another State where
none of the increments have been used might make a different
balancing of the factors and say that the advanced NO, control,
combustion control option makes sense.
We think that, under the statute, that is the approach that is the
one Congress intended, and that is the one that EPA ought to be using
and telling the States they should use, and we feel confident if EPA
gives guidance that the States will, in fact, make the decisions.
MR. RAHER: Thank you, Andrea. Do you want to make a
specific cite to David's prior statements in his...
MS. BEAR FIELD: Well, one of the factors that I listed in the
next one was the discussion of NOx air quality impacts or air quality
impacts. Can you take into account the fact that if I put on the
medium technology, I get down to something that is below the
significance level? If I put on the most advanced technology, I get
something that is also below the significance level. The difference
between the two is, by definition, insignificant.
If you go back to the guidance that was issued on PSD permits,
there are some lovely paragraphs in there about how you are supposed
to take these things into consideration. The modeling shows that
ambient impacts of installing the advanced controls and the
intermediate controls would be approximately equal. Does the PSD
permit issuer have the authority to decide that the benefits of the more
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19
These are all phrases that are in that document where the
document says yes, they do have the authority to decide that the
benefits of the more expensive controls are negligible compared to the
higher costs.
There is an example in that one on particulate matter, but it is
the same numbers, just coincidentally, and the same difference in
impacts.
MR. RAHER: So, one of the things we may have to consider here
is, you know, is there something that exists within the Agency today
which is a policy document or a statement of interpretation that is
either not being used, we would recommend should be used, has
changed in terms of interpretation, and so forth? We should probably
put that on the list rather than trying to reinvent the wheel and also
because we happen to have the author of the document around or at
least the person who was foolish enough to sign it.
MS. BEAR FIELD: Not foolish enough, wise enough. There are
a whole list of things that we think should be taken into account in
PSD perm itting...B ACT determinations, and they are listed on pages 4
through 6. They call come from the guidance issued in the late '70s
and 1980, and we think that they are the appropriate factors.
There have been updated versions of this list appearing in more
recent guidance, but some of the things listed here in the early
guidance don't appear, for example, the consideration of air quality
impacts.
MR. RAHER: Barbara?
MS. BANKOFF: Do you include in the full range of options the
depth of the pockets of the source? Do you think that that is
appropriate at all?
MS. BEAR FIELD: One of the things listed in the guidance in the
late '70s and 1980 was affordability. I think it is awful hard to ignore
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20
I mean, they are going to...with utility companies, they always say you
can afford it.
So, I mean, where do I come out'? I think that ought to be a
consideration, but I don't think the fact that just because a company
will not go broke by putting the technology on doesn't make the best
technology.
I don't see how you can ignore the size of the company in making
some of the decisions, but it seems to ine that ought not to be the
critical factor.
MS. BANKOFF: I am not sure how appropriate...
MR. RAHER: Barbara, could you make sure you use a
microphone?
MR. BANKOFF: Sorry. I would agree, and I would even question
the appropriateness of it in terms of the real intent, ambient quality.
Okay.
MR. HAWKINS: It sounds like we are going to pick and choose
from the paragraphs in my brilliant 1979 guidance.
MR. RAHER: Well, you will have a chance to point yours out as
we 11.
Mike or Pamela, go ahead.
MS. FAGGERT: I would just like to express my concern about the
suggestion that ambient impacts be considered. The reason is I think
we have to remember that the ambient impact analysis and the best
available control technology analysis are separate analyses. You must
satisfy both in order to get a permit.
I think I know what you are aiming at to say that if, in fact, an
expensive control technology and a not so expensive control technology
provide the exact same control, common sense would tell you, but when
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21
I would caution against including that as one of the criteria that
would be right up front with the others. I mean, it could be something
that you would consider at the very end of the line.
All else being equal, one is cheaper and one is not, you pick the
cheaper one, but it concerns me that it is here.
With regard to the deep pockets issue, I would say that if you
can't afford to do business, the control technology is one of the costs
of doing business, and, you know, if they can't afford it, it is certainly
unfortunate, but then they can't afford to do business and control
technology should apply anyway.
MS. BEAR FIELD: Let me clarify when I say ambient that it
shouldn't be ambient. It is air quality impacts, and that is just one of
the many things that I think should be in front of you, Pam, when you
make a decision so that you can see.
You put on the Rolls Royce of controls, and you get a certain
result; you put on something that is significantly less expensive, and
you get essentially the same air quality result. I think you should have
that information in front of you when you are making your decision,
and I think that you should be allowed to take that into account.
I don't think that it should be at the top of your list any more
than the fact that a company has, you know, net assets of X should be
on the top of your list, but I think it should be on your list.
I don't think you should be told by EPA you can't consider that,
because I do think it is an environmental factor, one of many that you
should be able to consider.
MR. RAHER: So, not to necessarily agree on the issue, but is
there...are you and Pamela agreeing right now that the term ambient
is probably not the one you were using there but just air quality
impacts?
MS. BEAR FIELD: Air quality impacts.
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MR. BARR: Is it appropriate to give a couple of other examples?
Can you hear?
MR. RAHER: Sure. It is on, yes.
MR. BARR: These are examples more from the nonattainment
side and, I think, show some of the other aspects ofBACT and LAER.
We call LAER BACT, really, in California, and they blur together, and
I think most of our comments today and most of my comments are
equally applicable to the Federal LAER as they are to Federal BACT.
Two examples from California, and I think I have described at
least one of them before. In Silicon Valley, there are thousands of
degreasers that are used in the semiconductor industry or in the
computer building industry, and they have got to be changed out over
the next couple of years, because they use CFCs. So, they have to get
away from those solvents.
There is a new technology that is primarily water-based, but it
does involve some VOCs, so there is an incremental VOC increase, and
yet, there really isn't any other better alternative available.
The problem is that there are hundreds of companies that need
to purchase and install the degreasers, and we literally don't have time
to go through a detailed BACT or LAER review for each and every one
of them. So, the solution has been to agree on a BACT manual that
the local district has prepared which contains, if you will, a sort of a
presumptive BACT. In any event, it is probably the control technology
that these 2000 degreasers will utilize as they go in over the next
couple of years.
That particular manual is updated annually, so if some further
development is discovered in the next couple of years, then the
degreasers that are permitted after that will reflect those developments
either up or down.
Another important feature of it, I think, is that the analysis has
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qualitatively. Although there hasn't been precise modeling as Andy
described, certainly the tradeoff between CFCs and VOCs have been
considered.
At least with respect to the Silicon Valley area in California,
even an area which applies the very strictest LAER standards have
included economics as a factor, because we need to preserve and
enhance that particular species of manufacture in California as much
as we possibly can.
That is one example. The other example is another
nonattainment area example, also driven by, at least in part, by an
environmental deadline. We have got really two deadlines for
reformulated gasoline in California, the Federal in 1995 and the State
in 1996.
What that means is about $4 billion worth of refinery projects
need to be done in the most polluted basin in the country, Los Angeles,
and in other parts of the State. The control technology consideration
there has been sort of off the end of Andy's scale, starting with SCR
as the base which gets, say, about a 90 percent control and, therefore,
would require offsets for the remaining 10 tons at a ratio of 1.2:1.
That is 12 tons of offsets, 90 percent of control, 12 tons of offsets.
There has been some consideration of sort of super SCR at 95
percent control which has caused some consternation, but it is really
an interesting feature of the regulations that if you did go to 95
percent control technology, then the offset requirement would be 6
tons for the remaining net, 5 tons of emissions resulting in a net
decrease in offsets of 1 ton if the additional control technology were
chosen which would be a somewhat ironic result.
Even for an area that requires the strictest control technology
imaginable, it does seem, again if you weigh everything on an all-
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to require a, quote, proven best technology of SCR and get the 12 tons
of offsets rather than go the 95 percent.
But we are very concerned, and the manufacturers are generally
concerned about the effect of control technology on the most urbanized
areas, generally nonattainment areas, and how it seems to be, as was
mentioned before, an endless time-consuming process and one which
doesn't seem to achieve the results or achieve the performance that
anybody would necessarily want.
So, we are very interested in processes for speeding it up, making
it more certain, and balancing, if possible up front, all the relevant
factors, including the environmental factors, environmental tradeoffs,
and, vitally important to the manufacturing sector, the economic
tradeoffs these days.
MR. RAHER: Bill, you have a specific question on what Mike
was...
MR. TYNDALL: On the manual. You may have to forgive me if
you have already said this, but does it cover more than the degreasers?
MR. BARR: Yes, it covers...gosh, it must cover 100 sources. It
is about that thick. It is a big grey manual, and maybe we should send
them a copy. We should have brought a copy for everybody, in fact.
MR. TYNDALL: In your suitcase.
MR. BARR: I am sorry I wasn't here yesterday. I intended to be,
but I went through the Midwest, and that is an area these days that is
like this glass that has been filled with all these faces around the
country.
MR. RAHER: We had that description yesterday. We were using
coffee.
MR. BARR: The solution there is to make a bigger cup.
MR. RAHER: We didn't reach that solution yesterday.
MR. TYNDALL: Are there significant source categories that are
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MR. BARR: Not significant. I mean, it has been focused on all
the source categories that we have got, because the more you have got,
the more pressure there is to have that sort of a tool.
MR. TYNDALL: And every source category is updated annually?
MR. BARR: Well, that is what they have undertaken to do.
MR. TYNDALL: The representative from California is also
nodding.
MR. BARR: Yes, that is what they have undertaken to do, and
that is the intent, and the experience has been that every category in
which there is significant new information is, indeed, updated annually.
MR. RAHER: And I take it, Mike, that since this, I think, is a
primary issue that we will get to on the agenda here, we might as well
make sure we understand it. You are saying that this is sort of the
norm during that year?
So if we are talking about the certainty issue, the sources
certainly have the certainty of it for that year, and at some point in
that year, I guess new information starts to be developed in the State,
and people realize that permitting that will take place in the next year,
it looks like something is going to happen, you don't necessarily know
what it is going to be, but eventually, I take it, for the next year we get
an update?
MR. BARR: That is right.
MR. RAHER: All right. Chris, I think you wanted to make a
comment?
MS. SHAVER: Yes, I have been waiting three years and perhaps
as many as ten to say this, but I agree with the State of Virginia, and
with respect to taking into consideration ambient impacts, I don't like
that at all.
I think BACT is one of the things that we have that has worked
the best of anything in the PSD program. It is a fairly objective, albeit
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26
When you start throwing in impacts on anything, we get into the
full cup syndrome again of it is just another little drop, and I would
contend that there really aren't too many things out there that make
a significant impact on anything, and we are going to talk ourselves out
of controlling anything if we look at impacts.
On the other hand, I think proximity, the pollutant of concern,
and things like that are things that could be taken into account
qualitatively, but to use them as a test is a concern.
With respect to the cost issue that Pain raised, I couldn't agree
more that pollution controls are a cost of doing business, but I would
give something to the industry in suggesting I don't think you pollute
because you like to. I think you pollute because people want a product
that, when it is produced, pollutes, which means it is not really a cost
in most cases to the industry. It is a cost to the consumer, and, quite
frankly, the consumer is where we need to start changing people's
habits.
The only way we are going to do that is if people start
understanding that their habits are what create these costs, not that
the bad environmental regulators are making things cost more. It is
their habits that cost. We are not the bad guys. I mean, you are not
the bad guys. We are the bad guys.
I think passing those costs along and making people aware of that
are fundamentally where we need to shift the country.
MR. RAHER: Ray?
MR. MENEBROKER: I kind of find it interesting in terms of
David's view and Andrea's view. They sort of don't parallel, because,
you know, David is asking for certainty, and Andrea is asking for
flexibility.
I think when you get into the area of flexibility, you are not going
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it quickly. If your goal is to try and streamline the process and get
your permits quickly, the certainty certainly does it.
I know in California...Mike alluded to the Bay Area
manual...many districts have a BACT manual that specifies what they
consider to be BACT, and they do update that, not necessarily annual.
Bay Area maybe does it annually, but they do it whenever they feel it
is warranted, and they can, you know, if a new technology comes up,
they can update it.
They also have the cost factors in there, but it does provide
certainty, and for the most part, contrary to what Mike might say...he
and I are contrary all the time...in California, BACT really isn't a
major issue in most projects. People come in. They have certainty as
to what BACT is. They know it. They don't like it, but they put it on.
That part of the process is fairly quick. In terms of the other
issue, and that is the process, if you use top down, bottom up, or
whatever, my experience is that if you have that type of a process, you
are always going to probably end up in the middle somewhere in terms
of the technology.
I know, at least in California's nonattainment areas, the one thing
that is driving BACT is offsets, not the BACT definition. The BACT
definition does nothing to get new technologies on board. It is the
offset issue.
If you want to push technology and you want to see advanced
technologies, I think most of the advanced technologies that are
around are there because of offset requirements, not because of any
other requirements. There may be some, but most of them, at least in
California, are driven by the offsets.
So, I think the whole issue about BACT is BACT is critical. I
mean, the one thing we can get is technology, and the one thing we
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MR. RAHER: Ray, you say there is really not a debate over
BACT, that people don't like it, they just put it on. There is a
certainty. Is it a certainty because the manual is there and defines it
and the project engineer knows it when they open it up, or is it
certainty because of the uniqueness of California, and that is you are
going to demand everything there is possible? Does the manual help?
Is that...
MR. MENEBROKER: Probably both. Probably both of those.
MR. RAHER: Okay.
MR. MENEBROKER: Not only that, but we operate our own
BACT clearinghouse, and that is available to everybody, too. You
know, I am not going to say that there isn't controversy. You know, I
mean, there are going to be cases where there is going to be a
discussion about BACT, but I think those are the exception rather than
the rule.
I think that in terms of the BACT, in the majority of the cases,
biggest majority of cases, it isn't an issue. Most people say okay, we
will put it on. Now what do we do?
MR. RAHER: David?
MR. HAWKINS: I guess this is a question for Ray about the
BACT manual and the annual update. I am interested in the
administrative resource costs of doing these annual updates, what the
process for the annual review is. Are each and every one of these
categories in the manual actually examined, whether or not permits are
pending for them, and what does that examination involve, and do you
have any idea of what the workload costs are for doing that kind of
thing, any kind of experience?
MR. MENEBROKER: In terms of the workload to initially
establish it in both the South Coast, the Bay Area, and some of the
other districts, certainly, you know, it takes some resources to get that
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Coast has updated theirs once, and I think it first came out like in
about '88 or so.
But just the fact that it is there doesn't necessarily guarantee that
that is BACT. I mean, if something comes along and they want to go
ahead and say that well, yeah, that is what the book says, but we know
something different, that is always the possibility. I mean, they are not
guaranteeing anybody that, but I think most of the time, that is what
it is. BACT doesn't change that much.
But it does take resources. There is no doubt there are a lot of
resources involved in it.
MR. HAWKINS: You said that the South Coast came out in '88
and it has been updated once. How does that square with the annual
update?
MR. MENEBROKER: Well, Mike was talking about the Bay Area,
and the Bay Area has made a commitment to do that. So, it depends
on the district.
Like I said, it is a fluid document. They are fluid documents. I
mean, it may be that they may just update certain sections of it
periodically. In the South Coast, it was a major effort to bring up the
whole new manual.
MR. RAHER: I guess the concept David is talking about is if the
concept of some certainty with a guaranteed update is something that
is beneficial, then at least for the committee's standpoint from a
recommendation, we can consider not what California is doing but what
is a better solution to the problem which may be a mandated update or
something else, depending on what the potential costs of those are.
MR. MENEBROKER: And I would say I would hate to think that
EPA would try and do this for the whole United States. That may be
asking a bit much. I think, you know, just doing it at the local level is
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get bogged down. They would never put out an NSPS. If they tried to
do something like this, you would never have any updates.
MR. HAWKINS: Right, and just one procedural question in terms
of the certainty issue. If, during the public comment period, public
comment is provided with respect to a level of performance that is not
included in this manual, does the permitting authority take that into
account?
MR. MENEBROKER: Oh , absolutely.
MR. RAHER: Don?
MR. THEILER: One of the things that was mentioned has been
covered, the idea of EPA putting together a manual covering all the
categories. I would be absolutely opposed to that. It would be just so
overwhelming. It will never get done. It will never get updated. It
will just be a mess.
If that is a recommendation that comes out of here, we are just
in trouble.
And I think the existing process of BACT determination with
some improvements is working very well, and I think people can come
up with horror stories, and I think we need to look at those and see
what adjustments to the existing system can overcome those. I think
that that is really where we ought to be at on this.
I think that the examples that were put out are good ones that we
ought to perhaps focus on a little bit. The idea that we examine, you
know, just more than the top alternative, I think, is legitimate, but to
go to anything except the top alternative, there has to be very clear
and overriding reasons for that. They ought to be pretty much
paralleled in some guidelines, but we need to leave some judgment, as
And rea said.
Usually, you can look at an array of alternatives, and the best one
will pop out at you. Not all the time, and that is where some judgment
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might get different judgments between two decisionmakers, but if the
guidelines are crafted well, that could be limited quite a bit.
MR. RAHER: Vivian?
MS. MCINTIRE: Yes, I just wanted to comment briefly about the
cost comments that were made a little bit earlier. I think a lot of us
tend to look at large companies and say they are large, they can afford
the most elaborate control systems that are out there, and perhaps
some of the industries that are represented where they are one-product
industries, that may be true.
But I want to mention two things for a large industry. One is a
lot of us are broken down into business units, and where you are
marketing a particular product within a large company, that product
has to stand on itself with the cost basis. If you are charging a
company to put on the most elaborate control system because it is part
of a large organization, you may or may not get that new project
approved if the costs are unreasonable for that product line.
So, while we all accept large companies can perhaps do more, I
don't think you can just look at the size of the overall company and say
they can do the best that there is regardless of cost.
I think the other thing that we need to keep in mind is we are in
a global society, and as we look at what we do for costs on some of
these controls, we have to look and where we are competing with
people who also are making the same product line.
MR. RAHER: Praveen?
MR. AMAR: I have a comment about the costs, too, and the point
I want to make is that the cost of air pollution control...and I would
give you an example with respect to NO, as we talked when we met last
time. The cost of NO, control is going down, at least with some of the
sources, very substantially. I will give you the numbers. I will read it
from the report, and that is a report by the EPA on NO, controls for
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We had a number for retrofitting...this is obviously acceptable,
but a lot of that debate is applicable to BACT also...a bo lit $13 5 per
kilowatt installed. This was December of last year. You are talking
about seven months ago.
ICAC which is Institute for Clean Air Companies...it is a vendor
group...they said we were estimating the costs too high, and they went
through that and sent us a long letter and said the cost was about $30
to $70 per kilowatt, one of the few times we were accused of
overestimating the cost.
Only in May, three months ago, EPRI sponsored a conference in
Miami on NO„ control for utilities, and these are the numbers from
Southern California Edison, not our numbers but theirs, that the cost
of NOx control retrofitting was in the range of $20 to $30 per kilowatt.
So, you look from $135 to $20, and you are talking about one-seventh
only over a period of seven months.
The point is there is a lot of competition going on. When we hear
the debate about how much it costs and that becomes a key issue about
what BACT is and what it isn't, I think we have to take into account a
lot of these costs are changing much faster than we are able to change
our testimony, and that has to be taken into account, I think, especially
with respect to NO, control, retrofitting for industrial boilers, BACT
for industrial boilers, for utility boilers, gas turbines, IC engines,
things of that sort.
MR. RAHER: Jim Jewett?
MR. JEWETT: I would like to add a word of caution regarding
the presumptive BACT. Although, you know, we have had quite a bit
of experience in California in the Bay Area, INTEL, I think, has gone
through a BACT review for each of the last seven or eight years as we
do different modifications in our factories there.
We now are putting on a system at one plant, but what happened
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always see that the basis for BACT was an efficiency level, and it was
always a presumptive thing. If you hit this particular efficiency level,
then you have met BACT requirements if you would install a device
that would meet that which may have been only one or two different
devices.
I feel real fortunate that we didn't have to put them on
previously, because as we have watched the types of units that were the
latest in control technologies being installed, I have seen five out of
the seven choices fall into disfavor within two to three years later, and
in fact, some of them have failed so badly they have had to have been
removed.
I think there are several people that have alluded to a way to
address this. I think Don Theiler said you just can't simply be
prescriptive, that you have to look at the circumstances when you do
a BACT determination, and I do agree with that, although I do like the
BACT manual itself that is in California, because it gives you some
idea of where you can go rather than having nothing at all in front of
yo 11.
So, there has to be a balance there, but I think if you take the
thing to an extreme, you run into a real serious problem of having to
run into failure within a very short period of time. In fact, a peer
company of ours now up there has a system that they spent several
million dollars on and has only been installed 18 months and has failed
miserably, and they are going to yank the entire thing out and put in
something else. That was considered a BACT device when it was
installed.
If we have to look at that as the answer in terms of always
achieving BACT or LAER, I think, you know, industry is very
frustrated with having to go through that process.
There may be an answer, and I think David McAvoy alluded to
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be worthwhile to have something in the permit itself that says what
happens if you can't achieve the levels that you think you can achieve,
and is there some allowance for you to continue to use the device or
to work a system out that would allow you to continue to operate
without going into a noncompliance problem.
MR. RAHER: All right. I think we are going to take the last few
comments that are up here, and then I would like to move back to the
agenda where we have got some specific items and let's see if we can
just focus in on those items, come up with some ideas, and we may, you
know, use the same format we used yesterday which is trying to get to
some issues that can be considered by smaller, but let's finish the
comments that are here, because I think it was useful to get a lot of
these issues out in relation to these specific examples.
Ron?
MR. VAN MERSBERGEN: There are three areas I would like to
address, if I can.
First, with respect to the economic costs, I would offer some
caution in this area in that if we take a Jook at the types of disciplines
that are involved in permitting, we find that we are heavily loaded with
engineers and heavily loaded with lawyers, and we are introducing
another discipline, the economists. If we go around this room, can you
imagine adding another 50 percent to this table to help straighten out
some of these issues like Dave McAvoy's suggestion or he indicated
that the cost range was from $1 8,000 to $30,000 a ton, and how do we
tie that in?
So, if we get into the cost area, we have to have very clear
guidelines as to what is eligible such that an engineer is able to figure
it out. Okay?
Secondly, as we push to innovative control technology, the
arguments have been made we need to allow the company a little bit
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And that sounds like a sound argument, although we have to be able to
assess whether or not the company is giving its best shot. The good
faith effort is very difficult to assess, and we have to be careful to
what extent we proceed in that area.
Thirdly, I was interested in Ray's observation that the need for
offsets drove the control technology more so than any other provisions
of the permitting process. I would like just to make note if we should
ever begin to look at the plant-wide applicability level to take note of
that particular observation, because there is that benefit to the plant-
wide applicability level. I might be a diehard on that, but I worked on
that for a while.
Thank you.
MR. RAHER: Richard?
MR. ZBUR: The only comment I was going to make was that even
in cases where there are BACT manuals, and we have one also on the
South Coast, there is considerable debate in terms of what is BACT.
You know, there are smaller sources that can't meet the
presumptive norms, and we have debates in those cases, and then we
also have debates regarding issues that arise due to the time that it
takes to have a permit issued by the agency, and a lot of the types of
issues that I think Dave McAvoy raised don't have anything to do with
or have very little to do with the debate over what technology may be
available at a specific point in time but as to the evolution of
information that evolves over a period of time.
I think most of the debates that we see in the South Coast tend
to be in that latter category where, for example, a technology is in the
BACT handbook, there has been discussions with the agency, and the
agency has identified some others that they would like the source to
look at.
The analysis of the various technologies occur, and then at some
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technologies, and that is really, I think, where there is a lot of
difficu 11y in dealing with the length of time that it takes to have
permits issued and where a fixed date in terms of the number of
technologies that need to be looked at is an important one in giving
companies certainty.
It is the requirement that you keep going out and having to look
at and trace down leads that keep arising over a period of, you know,
12 to 18 months that I think is one of the real difficulties, at least in
the South Coast, even in a case where we have presumptive BACT.
MR. RAHER: John?
MR. BUNYAK: I just have one comment on top down BACT, and
that is that we have seen the evolution of much better controls and
significant emission reductions as a result of top down BACT, and I
don't think top down BACT should be part of the New Source Review
reform discussions.
MR. RAHER: Mike?
MR. BARR: I think a lot of what we have seen in California is a
result of earlier debates like this about how the BACT system is
working, and I think we finally concluded that the BACT system, as it
was originally contemplated and as it still works Federally, is one of
the command and control systems that is probably closest to collapse.
It really is like a dinosaur.
The only reason that it tends to work is that most agencies don't
go through a full BACT review, top down BACT, and most companies
don't squawk about what the agencies are proposing, and most public
interest groups don't get involved permit by permit.
So, what the manual tends to do is to make explicit what is
already implicit and just makes it clearer what the actual practice is
in the way that Ray described.
There is a concern, I think, on the high tech industry side that the
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system that involves a full-scale BACT review source by source, and
that is where the manual has perhaps the greatest attraction.
In terms of the administrative costs, the cost in the Bay Area is
about two or three full-time equivalents per year which, out of a
budget of $30 million annually for the air agency is not a lot. It is
about $200,000 or $300,000.
It clearly cuts the cost of delay to everybody, and our experience
with the plant-wide applicability limits is the same as really Ray
implied and Ron said which is that sort of a plant-wide limit which
declines in some foreseeable way is the most effective way to drive
technology, because it promotes the widest range of innovation.
MR. RAHER: Yes?
MR. SOLOMON: Just a point of clarification, Mike. When you
talk about these manuals, although you say BACT, I think people
should realize this is for a LAER determination.
MR. BARR: Well, it is for all technology, and it is for BACT, and
it is what the Feds would call BACT or LAER, but we call it BACT,
because it just is...
MR. SOLOMON: But in terms of giving certainty to the
applicant, is it certainty in regard to the spectrum of technologies that
are out there, or does, for each of the categories, the Bay Area, the
South Coast, line item that technology which is representative of the
requirement?
MR. BARR: It is a recommended single level for that,
recommended single current level for that type of source, and then that
focuses the debate more on the type of the source than it does on all
the different control technologies. We haven't talked about that issue,
but that issue can be as contentious and difficult as determining the
level of BACT. Is it one of those, really, can be a very key issue.
MR. SOLOMON: But the point I was trying to get across, is this
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level of control, you do not have the case-by-case analysis allowed as
you would in a normal BACT analysis.
MR. BARR: There is a limited case-by-case analysis, but that is
where you start.
You start from the manual, and the manual has gone through the
public process, as Ray indicated before, so it really front loads the
public process. As long as that is updated periodically, then the public
process has been current and so has the technology review.
What it really shows more than anything else ...one of the things
that it does is show very clearly what the cost to everybody of such an
intrusive command and control system is.
One of the reasons why I think the business sector has liked the
manual as it has developed is that it showed the policy makers and the
staffs of the agencies in a way that is more explicit than perhaps the
statutory BACT system would imply that there is a tremendous cost in
being this intrusive in specifying what the control technology should be
for every kind of industry that exists or may exist in America.
MR. RAHER: Gregg?
MR. WORLEY: First, I would just like to comment I kind of find
it interesting in essentially the breakout of the three categories that
Andrea gave us, I find the third category to actually be the practical
application of top down BACT. In fact, that is how we implement it
within our region. I can't speak for all of EPA, but within Region IV,
that is actually how it works.
We have a number of instances where similar types of sources in
different States have come to different conclusions about the control
technology that is being applied.
So, I don't think that top down is something that really needs to
be fixed. I just think there needs to be a focus on the practical
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The second thing I would like to comment on is the use of
ambient impacts in the analysis. I think when we start looking at
things such as NO, and looking at significant ambient impacts and
using that as a cut point as to whether technology should or should not
be applied, it kind of takes a step back from where the '90 amendments
have brought us in recognizing NO. finally, as a precursor to ozone.
If you are going to look at ambient impacts of NO, in a control
technology analysis, you also need to take a regional look, particularly
in my case in the Southeast where NO, is a big player in ozone
formation. An insignificant ambient increase in NO, or delta between
control technologies on paper might not look like much, but when you
are talking about a major source, for instance, an electric utility where
it might be thousands and thousands of tons a year of NO,, it could be
a big player in the ozone formation.
So, those types of things should be taken into account in looking
at the overall environmental impacts.
Also, on the issue of affordability, that has been one of the
touchy issues in these last four or five years since this top down policy
first came out and something that we have worked through within the
region .
One of the things I would caution against in looking at
affordability is it really gives an economic or a competitive advantage
to a poorly run company, and company that is working on a very small
profit margin, that is just barely getting by, that can come in and make
an argument we can't afford to put on this control, whereas a company
that is doing well, doing all the right things might have a higher profit
margin if you make an affordability argument they can afford to put on
the controls.
So, I think we need to step back from making affordability
arguments between various companies when looking at the control
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I guess finally, again I would have to emphasis that the third
option that Andrea presented is really the end result of the top down
process when you work through the different machinations of the
process. We do give a lot of deference to the State and putting
individual weight on how they consider the different factors, and it is
a process that can work.
Finally, I would like to address the issue of the BACT manual
that was brought up. I know Don has stated that, from his perspective
as a State, he doesn't really want to see EPA going through that
process.
I would have to say that within our region, the States have a
different attitude, not necessarily looking at a comprehensive BACT
manual such as South Coast has where you are trying to look at every
individual source but something more along the lines of picking a few
of the major hitters, maybe something like kraft pulp mills or chemical
process plants or electric utilities where you get a number of similar
PSD permits within any given year and going through a process of
creating some type of national guidelines such as was done with
municipal waste incinerators a few years back.
Once that national guideline was published, essentially all the
questions and the long protracted arguments about what was BACT
ended. So, it speeded up the process on issuing permits. It also has
the effect of lessening the time an individual permit engineer is
spending fighting on the same type of sources again and again and lets
them speed up their reviews of other types of sources.
So, that is something that our particular region of the country
would support, and that is looking at a presumptive type of BACT but
also keeping in mind that that is something that must be looked at on
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So, for any presumptive BACT, you also have to have a caveat
that the individual circumstances of the particular case could result in
a different BACT determination.
MR. RAHER: Andrea ?
MS. BEAR FIELD: I wanted to go back over a few points. Ray
said earlier that there might have been perhaps not a complete meeting
of the minds between Dave McAvoy and me. There may not be a
complete meeting of the minds, but I think we agree on more than we
disagree. At least, I hope we do.
Sure, I would like certainty. My concern is that simply saying
gee, EPA, come up with a number and if I exceed that on dollars per
ton, that is more than it should cost me.
There is no way for that number to stand up for more than 10
minutes. If EPA sets a number at $3500 per ton removed, someone
somewhere is going to agree to do something that costs more than that,
and the next time Dave goes in and tries to get his permit, his permit
issuing agency is going to say that guy over there did more, why
shouldn't you do more?
And that is the problem I have with coming up with a specific
number.
I guess, following on what Gregg said, one way of doing it that
would not be as time consuming or as impossible to do as coming up
with this document, a BACT document that would be updated every
year, would be as we talked about, I guess, six months ago, is putting
together...basically trying to make the BACT Clearinghouse work
better, putting together information, and perhaps on an annual basis
actually putting into a document half a dozen examples from different
industries and making that more widely available to people.
Does that say that whatever so and so did in EPA Region IV in
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Well, not necessarily, but if Don has in front of him some recent
decisions on similar issues, he can see what other people have clone.
That doesn't mean he shouldn't have the freedom to balance and
make the right decision in Wisconsin which may be a more stringent,
go with more stringent technologies if some are available or something
less stringent that somebody has come up with, but at least he has one
place to go.
I think that is the concern. You shouldn't have to run around the
country or the world in order to track down the rumor of the week. I
know we have done that, and as Dave says, nine times out of ten, the
rumor of the week is just that. It does not pan out. Whatever it is
that has been heard is just not true, and it would be useful to have one
place you could go to get information.
Following up on something Praveen said yesterday, I guess I
would feel better about this document if there was an effort made...and
it doesn't have to be made continuously...but if there was an effort
made to go back and look at the sources that have been permitted and
find out, for Praveen's sake, how much it really did cost to control, to
add the controls, which is a calculation that is phenomenally difficult
to make when you consider everything that is going on, but at least
make an attempt, but also go back and attempt to find out what the
control technology really achieved.
We know that there are many times where people, in the heat of
trying to get a permit...they want the permit yesterday...will agree to
anything on the theory that I will be able to do it. I will keep my
fingers crossed. The technology will work, or if it doesn't, I will go in
and get a permit modification.
A lot of those facilities are never even built. So, the condition
is agreed to. It is in the BACT/LAER Clearinghouse, and when Don
Theiler goes to look at it, he sees that someone has agreed to that
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43
never been built and that that limit may not have been achievable. So,
I think it would be useful to do the update.
On the issue of costs, I would like to add that tomorrow at the
OTC meeting, EPRI is going to make another presentation on NO,
costs, and while it may cost $20 a ton for SCR on gas fired units, that
is not the total dollars on coal fired units to put on SCR.
MR. RAHER: Well, Praveen, we will wait for your next report on
what new costs numbers were.
MS. BEAR FIELD: And I have no idea what EPRI is going to say,
but I do know they are going to come out with some more information
that I think shows that your original numbers may have been right.
The actual numbers may have been in the ball park, perhaps not for
the right reasons, but they got there.
I do think that if you have all the information, if Don Theiler or
Pani or any other permit issuing authority has in front of him or her all
of the information on what others have done, I think it is also
important that EPA make it clear to that permit issuer that that permit
issuer does have the authority to do the weighing and the balancing.
I think that is one of the things that slows down the permitting
process. It is this fear that EPA is going to second guess the
determination.
1 can understand that if someone only looks at the very least
stringent, that is NSPS, let's stop there, that is not appropriate. That
is not a BACT determination, and more has to be done.
But if the State does look at the most stringent control
technology, at the least, and at all the reasonable options in between
and the State does the balancing and comes to the conclusion that
something, not the most stringent, not the least stringent, but
something else is best technology, EPA should make it clear in
-------
I do think that one of the things that the State should look at is
air quality impacts, but I agree with Gregg that is just one of the
factors, and if you are talking about NO, emissions in or near an ozone
nonattainment area, near a Class I area, that factor is low on the list.
It is not at the top of the list, but it should be there as just one of the
things that the State should consider.
MR. RAHER: Andrea, I think Lydia has a question.
MS. WEGMAN: Just one quick question. When you talk about
updating, Andy, do you see the sources as providing the updated
information in terms of what the costs have actually proved to be and
what the control efficiencies are, or is that the State's job? How would
it be done?
MS. BEAR FIELD: I don't see the source doing it if the source
never built the project.
MS. WEGMAN: If it didn't get built, that would be tough.
MS. BEAR FIELD: It is history. I mean, that is something that
we can talk about, about what the most efficient way is of doing it, but
I think it is really important to get the follow-up information, or you
are going with numbers that may be completely meaningless.
MR. RAHER: Unless there is a violent objection to those people
with cards still up, I think it would be helpful...we are all now talking
about a lot of issues, and t h e y a re float i ng back and fo rt h .. .i f we could
take a look at the agenda items we have here, these previous issues,
and if you could save the comments that you have for when they come
up here, I think we will start to catalog them a little bit better, and it
will be easier for us to identify the kinds of issues.
MS. BEAR FIELD: I have one other little thing I would like to
throw out on the table, because these are just for consideration, and
it is something that is coming up increasingly.
This is where the BACT determination process is being used as
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the facility that it is trying to build. In other words, the permit
applicant comes in and says I want to build a widget factory, and the
BACT determination is used to say no, you should build a gadget
factory.
I really am concerned about this. The example I have in here is
one based on something that happened in a permit application in
Wisconsin, but it wasn't Wisconsin that came up with this. It was some
other participant in the review process.
We are aware of a company that wanted to use recycled paper, to
take used paper, recycle it, and make a new paper product, and the
whole reason behind the company was to use this paper that would
otherwise be treated as solid waste, have to be stored somewhere else,
was disposed of somewhere else, to take that and make it and use it.
One of the things that happens, though, when you use paper that
has been previously used and try and recycle it is when you put it on
the rolls, it sticks. There are stickies, and in order to get the stickies
off the roll, you have to use a solvent to clean the roll.
If you use virgin pulp, you would not have to use nearly as much
solvent. So, by using the recycled paper, the previously used paper,
you end up using more solvent than you would, but you are using paper
that otherwise would just go into a landfill or someplace.
The company came in and, in putting together a BACT
determination or BACT submittal, looked at all of the different
technologies that would be appropriate for use if they were recycling
paper that had been previously used, ways of minimizing the amount of
solvent that would be emitted from this plant, the VOCs that would be
emitted.
At one point in the process, one of the people reviewing the
application said well, gee, why don't you use virgin pulp in the
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You know, it really is a concern. You get people in here saying
why don't you build a completely different facility than you have in
mind, and we think that should not be part of the PSD permitting
process.
When you come in and you say here is what I want to build, the
BACT analysis should focus around how do I build that facility in a
way that produces the lowest emission rate consistent with BACT, not
how do I build another facility that basically is a different process.
MS. BANKOFF: Did it pass? Did it go in?
MS. BEAR FIELD: No, no. The issue, you know, people were just
so outraged. I mean, you could go through the BACT process and say
look at the environmental impacts, the non-air quality impacts. You
have got all this paper that you otherwise have to get rid of. You have
to cut down more trees and forests. I mean, this is crazy. And it went
away, but it was an issue for a while.
I will say it wasn't the State that brought this up. The State
looked at the permit application that came in and made the BACT
determination on that process.
MR. RAHER: Well, if we can...again, if there is violent objection,
let me know, but if we can...you have a violent objection, John Paul?
Go ahead.
MR. PAUL: Not violent. I just wanted to add. I mean, I think
you need to hear the State and local perspective on a lot of the issues,
and maybe that will help us set up a little bit more.
With regard to the California success, I would think that it is not
due to the manual so much as it is due to the acceptance by companies
in California that they are going to have to do BACT. I don't think it
is that it is identified so much in these manuals as it is that they know
going into it that they are going to have to do that, whereas the
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47
identifying BACT but it is in trying to talk the agency or trying to
justify doing something less than BACT.
I think in Andrea's example, you know, the SCR, that is clearly
the best available control technology. It is a matter of trying to justify
doing something less that really adds the uncertainty and then gets the
process tangled up.
With regard to the ambient impacts, they can work against the
applicant but not in favor of the applicant. Once you identify BACT,
it is possible that could have an ambient impact that is not acceptable,
but we can't really look at an argument that says that this is a
negligible impact, therefore we shouldn't have to do BACT. So, I
agree with those that said that they are separate.
With regard to presumptive BACT, you know, I agree with Don
Theiler. That just is something that we don't see as possible for EPA
to do a manual and keep that updated.
Once again, with regard to the Clearinghouse, I would certainly
agree that it needs strengthening. We do follow up. When we see
something in there, the most important thing for us is the agency that
did the permitting, and we almost disregard what is in there. We use
the levels, the permitted levels, as a screening process to identify
something for us to follow up on, but then we have to contact the
agency. We say hey, was the facility built, has it been tested, what
were the real costs, can we get a copy of the permit, can we get a copy
of the stack test. So, the follow-up is certainly necessary.
Two other things and then I will quit. One, the case-by-case is
important, and we need that. What I fear more than anything else is
a political process whereby, you know, we know what is technically
BACT, and that is clear, but when we really emphasize the State's
authority to do something less than that or to make all these decisions,
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becomes a political process, and it is the governor's office that gets the
application before we do, and that is a problem.
That is why we need some real backing from EPA to, you know,
to more or less hold our feet to the fire on BACT.
Also, I think it would be worth exploring something how much
money would it take for U.S. EPA to either run a BACT/LAER
Clearinghouse that everybody believes is top notch, or how much
money would it take for EPA to contract with a contractor to run one
that would do follow-up or whatever.
It seems like everybody agrees that just an exceptional
BACT/LAER Clearinghouse would help us all. I don't think it is a
technical impossibility, so it has got to be something that is a matter
of resources and available resources.
It seems as though there ought to be enough momentum coming
from a committee like this to provide the whatever willpower to get the
money into a clearinghouse and to make that something that we could
all use in the future.
MR. RAHER: Mark?
MR. CARNEY: I just had a couple real quick ones. I think EPA
and the States have a powerful tool when it comes to using the issue
of new technology, because a lot oftimes what happens is a State or an
applicant would be proposing and maybe not want to be at the top
level, because, as Dave says, they have some problem, the technology
has never been applied to this particular application.
If you would put conditions on there that would make a
demonstration project which would say you need to do a demonstration,
it would be basically used to gather information for that particular
source to be used at some later date or enhancement of the
BACT/LAER information.
The other thing I think we have to focus on are the other
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times you get into issues of scrubbers and what effect that has on ash
disposal, what happens in water, and that goes sort of back to what
Andrea was talking about how it is very unique into the individual
area.
For example, one of our applicants has made a case that they are
using a salt water scrubber, and when they put some type of ammonia
injection into the system to control NOx, they now have this disposal
problem of ammonia salts that they had to get rid of, and they
happened to be in Puerto Rico, and they didn't have a lot of places to
put the waste.
The last thing I think I want to make a point of is the incremental
cost per ton. As we keep pushing things, more and more controls, we
are getting down to the top level where we are talking about 95, 96
percent, and that last additional 1 percent or 2 percent or whatever
becomes more difficult to do than it would be to take the first 90
percent out.
I think we need to focus on that, too, because there are a lot of
costs and technology difficulties associated with getting that last 1 or
2 percent out.
MR. RAHER: Dave?
MR. MCAVOY: I know you want to move on, but I want to make
a comment with regard to the comments that we gave this morning. I
think that we have to be careful that we are not seeing the forest for
the trees here, and I would like to try to unify Andrea and I even more
for us.
Part of the problem, I think, is that there is no one solution that
is out there that everyone is going to like. For instance, if EPA were
to take an approach emphasizing certainty, Andrea is right, there
would be many sources out there who would say that EPA is going to
have to set the standard too high, and the price for getting a permit
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For some sources, they may want to pay a higher price in order
to get a permit more quickly, because the cost of delays would be
greater.
With regard to her points, I think that a case-by-case analysis
looking at everything is helpful in some instances, and what I would
propose is that we provide choices to sources and allow...define the
criteria or give some of this presumptive cost criteria and technology
criteria and allow those sources who place a premium on speed to go
down that path if they like. If a source wants to challenge what the
agency has in a BACT manual with regard to their unique facts, then
allow that source to do that.
MR. RAHER: David, the last word, and then we are going to take
a coffee break.
MR. HAWKINS: All right. I don't want to delay that, so a couple
of quick thoughts.
The first is to just go back to the origins of the BACT
requirement, sort of why we are doing this, and it is to avoid the
situation before 1977 where new source requirements were essentially
anchored to an outdated definition of, quote, best technology that
everybody knew was nowhere near the best. The idea was to come up
with a case-by-case approach that would make sure that individual
determinations kept abreast of state of the art.
One of the reasons why was mentioned half a dozen times
yesterday, the existing source problem. We talked over and over again
yesterday about some of these deterioration problems that are really
associated with existing sources.
Well, today's existing sources are yesterday's new sources, and
today's new sources are tomorrow's existing sources, and to minimize
the probability of today's new sources becoming tomorrow's existing
source problem, we need to keep our eye on the ball and put state of
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We should not lose sight of that in talking about procedures. We
should recognize that, at least, I think, from the standpoint of most
State and local permitting authorities and the standpoint of most
environmental organizations, success in this process means the
application of high degrees of performance, and any procedures that
get in the way of that are going to create controversy, uncertainty, and
delay, and they will be resisted by the entities that have to make the
decision at the State and local level, and they are going to be resisted
by the communities that are affected by these sources.
That is just one point. The other one is with respect to the issues
Andrea just brought up about the gadget versus the widget factory. It
is, again, it seems to me, that you want to avoid arbitrarily creating
boundaries for questions that can be asked. I am not offended by the
question that was asked of the applicant in the paper making facility.
I think one has to distinguish between the wisdom of asking the
question and the wisdom of the answer, and it sounds like the right
answer was given, but the fact that the question was asked doesn't
disturb me at all.
I think that the example that I believe was mentioned in Andy's
paper but she didn't discuss which is quite a different one is the
question of fuel choice. I think it would be particularly inappropriate
to arbitrarily say that a permitting authority may not ask the applicant
to justify its fuel choice, particularly when the fuel choice that is
proposed by the applicant is one that results in more emissions than
other available fuels.
That kind of an analysis seems entirely appropriate as part of the
BACT analysis and one that I think ought to be encouraged and not
discouraged.
MS. BANKOFF: Can I just ask a question?
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MS. BANKOFF: David, I just wanted to ask how you feel about
the affordability issue. Do you think that the cost effectiveness test,
whatever the decision is, is the key one, or should affordability be part
of the panoply of BACT choices in front of the decisionmaker?
MR. HAWKINS: Well, the language of the statute is achievable
by the source,and I think achievable by the source cannot be answered
solely by reference to some abstract table of numbers. If, in fact, the
project is viable using a technology with a high cost effectiveness
number, high dollars per ton, that seems to me that doesn't get over
the hurdle of achievable by the source.
It is achievable by the source, and I think it is tough to argue that
it shouldn't be employed by that source simply because of some
precedent that for some other facility where the project was not viable
at that cost effectiveness number and, in fact, the real determination
wasn't based on that cost effectiveness number...typically, that will be
a subsequent rationalization of it. Most sources don't care about
dollars per ton; they care about dollars. That is really what
determines whether a project is viable is what are the dollars that have
to be invested in the environmental components of the project, not how
many tons are taken out by the environmental components of the
project.
When comparing different options, obviously, the cost
effectiveness is relevant, but in terms of project viability, it is the
dollars that the applicant is being asked to spend, and then somebody
else converts that into a dollar per ton.
So, I think it really is appropriate to look at what is being called
affordability which I would call achievability.
MS. BANKOFF: But if the source cannot afford it, then...you are
saying affordability does matter?
MR. RAHER: I think David was saying one of his examples was
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the source was built and operated under something less, and it was now
being compared, but in that case, the source, the new permitted source,
appeared to have and was able to afford lower emission results.
And David said, you know, there is an affordability example. It
was allowed one time, but it can't serve as a ceiling the second time.
MR. HAWKINS: I think that in terms of the Federal statute that
EPA is authorized to tell States that they may, in fact, permit facilities
based on affordability decisions that, in effect, allow some projects to
go forward using a less demanding performance standard for that
particular project than other projects have been required to achieve
because of affordability considerations.
But to come in on Pain's point, I think that the States also have
full authority to say no, the cost of doing business in this State is to
meet these standards of performance, and if you can't meet them, we
don't care whether you are making an affordability argument or not,
you are not going to get a permit from us.
MR. RAHER: All right. Why don't we break for 15 minutes and
come back at 10:20, and we will pick up on some of these specific
issues and your comments.
(WHEREUPON, a brief recess was taken.)
MR. RAHER: We will move on to the agenda items that we have
as listed and try to bring some of the issues together which I think
many of us have been identifying during the morning hours, but if we
can be a little more specific on each point, I think it will help the EPA
staff to bring together some of these ideas and help us organize them
as we have done in the past with respect to the Class I areas.
MR. THEILER: Are these points on the agenda here, is that what
you want to take up now?
MR. RAHER: Yes. If you look at the agenda that we have for
Day 2, it says...they have it listed as previous issues.
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MR. RAHER: But I would like to start down those right now and
just see if we could spend a little time, you know, as much as we can
get accomplished before lunch. A lot of these issues have been
discussed. There have been a lot of ideas thrown out on the table.
Let's try to coalesce around some of those ideas, get them organized
so that we can put them into some boxes. Maybe some subcommittees
can work on them. Maybe we can have some coalescence around some
of these issues.
Why don't we start, obviously, with the first one which is access
to control technology data, recent BACT/LAER decisions just to get
the discussion rolling a little bit, and then we can pull upon the issues
and comments that were raised by people who were talking about this
issue during the morning.
It seems to me that a lot of people were saying that this type of
data base would be extremely helpful. As I listened to those
comments, it seemed to be that it is helpful as long as it is, for lack of
a better word, fairly airtight.
In other words, if it is a clearinghouse that is there and you still
have to, as Richard said and others, Dave McAvoy, if you still have to
run around for six months and chase down every lead that there is,
then that doesn't help the public, it doesn't help the permittee, and it
doesn't help the agency.
So, one of the things we ought to be thinking about is, you know,
is there a way...let's not ask technically yet, because that is up to the
computer geniuses and all that, but is there a way to try to make such
a clearinghouse as basically airtight as we can?
I would throw out just the following concept, and then let's all
chime in on it. One way to make sure the information is coming in and
is coming in in a uniform format is...and this is not my creation, but I
think it came up in our last meeting...is to have it as a permit
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In other words, once that permit is issued, as a condition to that
permit, the permittee must provide in a certain format a certain
amount of information to the State, and if the State verifies that
information, then it is presented to EPA and put on the bulletin board.
Now, we will decide what that information is and everything else,
but that is one way so that everybody, the public, the regulator, the
permittee, can feel confident that what is actually out there being
perm itted ...and maybe we have to put a comment in here, and built...is
in this data base for working.
I think a number of people were saying that the additional cost
to business of complying with that is not going to be particularly
dramatic, because, hopefully, they are developing all that information
anyway. It is just a question of putting it in the format.
So, I raise two issues for your consideration. One is what can we
do to make this as airtight a data base as possible, and two is the
concept of making it a permit condition, and then we can talk about
what that is, a feasible concept, or are there other ways to get that
data into the data base.
Mark?
MR. CARNEY: I think it easily can be part of a permit condition,
because, obviously, right now you have to submit your compliance tests
as part of your demonstration that you have achieved your emission
limits. So, it can easily be in there, and if it is just a matter of having
the format be a summary format that is, I guess, provided as part of
that information, I don't see that to be a major cost to the applicant.
The other thing, I think, is there needs to be a better way to get
hold of the information, because I think right now what is happening
is every time somebody looks at the Clearinghouse, they find one...at
least, this is what we do. We go to the source or we go to the State
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So, we are going after that ourselves, and probably States are
doing the same thing. I was talking to Gregg, and Gregg made a
comment that somebody called him from another State asking him for
the same type of information.
So, it seems like if that information was more readily available.
The third thing is to try to get a time frame that says if they
didn't submit it by X date...I guess you could use it as an expiration
date on a permit. I mean, in other words, if the permit expires, then
it comes off the clearinghouse bulletin board.
MS. RITTS: You could just use the 18-month period.
MR. CARNEY: Well, you can ask for an extension, though.
MS. RITTS: Right, that is correct.
MR. CARNEY: So, I would say it is the date of expiration of the
pe rm it.
MR. RAHER: Again, a lot of these issues, and I think we are
going to have to get into them in terms of what the expiration date and
what we are asking I think are very valid, but I think what you are
saying, Mark, is that as a permit condition of presenting the
information, the added cost and so forth and the information appears
to be there. We have a question of accessibility and what has to be in
there to probably be looked at.
Leslie?
MS. RITTS: I think the compliance test information will be
available and can be reported to the clearinghouse as well as to the
permitting agency. One of the challenges may be to get some of that
operational information in, particularly on these innovative
technologies where you are pressing the envelop that indicates you
have got performance problems and may suggest what the permitting
authority has done or what the source is doing to rectify those
operational problems, because, indeed, a lot of these innovative
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MR. RAHER: So, there may be...
MS. RITTS: I don't know if a one-year reporting requirement or
that we can take some of...certainly, when the operating permits are in
place, there is going to be a panoply of reporting types of information.
If some of those can be routed to the clearinghouse without imposing
a great additional cost...
MR. RAHER: And this is also a distinction between BACT and
LAER? I mean, these are not issues that cover both?
MS. RITTS: Sure, sure.
MR. RAHER: So, there may have to be some distinctions here.
MS. RITTS: But the critical thing for sources are going to be to
try to persuade people that there really is an incentive for them to do
this, because they are going to see another reporting requirement and
want to buck it.
MR. RAHER: Well, I think maybe that is an issue we need to be
looking at. The incentive may be the incentive of the agency to
maintain the data base, and rather than bucking it, if it is a permit
condition, it is not necessarily something you are going to buck.
MS. RITTS: No, but I mean in terms of resistance to additional
costs of another reporting requirement for which there may be some
penalties for not doing properly. You want to get away from that and
let this be an inducement to sources to record this type of information
so that others have the benefit and so that you have the benefit when
you go back to use this thing the next time.
MR. RAHER: Mark, you had your hand up?
MR. CARNEY: I would suggest that maybe you get industry
groups to help with that, because, obviously, it is going to help the
source, the applicant, if what they did, we make sure it is all right,
because if it is not right, then the next one comes in and says well, so
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demonstrated that. Then the new applicant lias to make that whole
running around chasing everything.
If you get industry groups in there...
MS. RITTS: Yes, that is a good place for these trade associations
to want to get involved. That we probably can raise with the various
trade associations sitting around the table.
MR. RAHER: Okay, good point. Mike?
MR. BARR: I think that it is a constructive suggestion, because
most of the information is available, and it certainly is a way to ensure
that some of the post-permitting data which is generated as a result of
the control technology decision is indeed included in and reflected in
the clearinghouse such as compliance testing or performance data
which I think is so essential to the credibility of the data in the
clearinghouse.
I think that leads to another feature of the clearinghouse which
I think would be very helpful, and that is sort of like a star system or
some way of categorizing the different information that is in the
clearinghouse on the basis of how sophisticated and reliable it is.
A five-star piece of information about a control technology might
have performance data and might have been repeated in different parts
of the country and might have met some fairly rigorous criteria for
reliability and credibility. A one-star is something that maybe
appeared in Dave Hawkins' draft of his piece in the '70s and was some
musing on a great idea.
MR. RAHER: David, we appreciate your being here to allow us
to pick on you like this.
MR. HAWKINS: Well, it promotes creativity.
MR. RAHER: That is right, exactly.
MR. BARR: But you could certainly imagine one, two, three,
four, five stars, and I think that is a system that I think would be
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Also, another thing just like your surveying...
MR. RAHER: Now, Mike, I am assuming if one of the goals here
is we are trying to improve the speed and credibility and usefulness of
the system, that necessarily the five star, one star, we either have to
have criteria at the beginning, or it has to be updated along the way.
I mean, you are not...I don't...
MR. BARR: That is right in both instances, right.
MR. RAHER: All right.
MR. BARR: Also, and just as you suggest through the permit
condition mechanism that there be a further obligation on sources to
provide information for the clearinghouse, I think there should be a
further obligation on the agency or agencies which manage the
clearinghouse to continually improve its quality through user surveys.
I think it is necessary that any data base like this that is
commercially available have some sort of a feedback mechanism, a
simple one-pager that is really available every time it is accessed so
that people who want to give feedback can do that in a useful way.
Then, the other...
MS. RITTS: Can you imagine what that would look like now?
MR. BARR: That is right, but it is always helpful. It is part of
basic quality management.
Then another idea is to further explore the idea of EPA-State
partnerships for BACT/LAER clearinghouse or clearinghouses. It
almost seems, in fact, like we have numerous clearinghouses right now.
EPA runs one of thein, the Bay District runs another, ARB runs
another. I don't know how many there are, but the proliferation of
them is disturbing, I think, and the coordination of them, I think, is
probably inevitable somehow, but I think that is something we need to
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In terms of the overall clearinghouse, it is mandated in the
statute. It is certainly mentioned there, and there is a lot invested in
it.
I think it is beginning to work, and there are good precedents
from the Bay Area of California for how it might evolve in the future.
Whether it is feasible to do that is, I think, completely an open
question.
It is really the only way that will help some areas and small
businesses. I think overall, again, what it shows is that the level of
resources required to administer, say, what some people would think
is a perfect technology requirement system may really not be worth it,
and we need to look for other alternatives like ways of providing
incentives for companies to prevent pollution or somehow get away
from a strict m icromanagement of every technology that a company
might conceivably utilize in a plant. It really isn't working very
well.
MR. RAHER: Don?
MR. THEILER: I think we could spend a lot of time agreeing on
lots of things on BACT/LAER Clearinghouse. I think we ought to give
this to a committee. I think that is something that we can move rapidly
on, and I don't think we should spend a lot more time on it right here.
I think we have got bigger things to deal with.
MR. RAHER: Okay, that is not a bad recommendation. Ray, you
had a comment?
MR. MENEBROKER: Yes. The Air Resources Board has been
operating a California BACT clearinghouse for how long? Over ten
years you started it. Right?
MR. BARR: That is when it started, yes.
MR. MENEBROKER: And I like the suggestion with regard to
putting this on a permit condition, because one of the problems that
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districts is getting information into the system. There is, you know,
half a dozen or so districts out of the 34 that actually enter data and
give it to us.
I think that is the toughest part, is to be able to get the
information into the system.
MR. RAHER: I think the air condition has finally returned. We
will have to speak up, I think.
MR. MENEBROKER: So, I fully support that, and I am going to
take that back and talk it over with the engineering managers in
California...we meet quarterly ...and see if that is something that we
could think about and even start doing. I don't know if they will buy
into that or not.
I would like to hear industry's view on that, if they feel that that
is something that they are willing to do to be able to have the data
available, because we are in the process right now of working with EPA
headquarters here to, on a real-time basis, put our information into the
national BACT/LAER Clearinghouse doing it electronically, and that
is our goal in the near future is to be able to do that.
I think one of the problems that needs to be addressed is how do
you QA/QC it. We at ARB, when we get the information in from the
local districts, we have engineers, permitting engineers look at the
data just to take a look at it and see if it passes the straight face test.
A lot of times, it doesn't. I mean, you look at it, and you say wait
a minute, you know, this is wrong. And I think, you know, garbage
in/garbage out. You have got to be sure that whatever system is set up
is set up such that there is some quality control on the information
going in, because I think once it goes in, it is in. There is nothing you
can do about getting it out. So, there has to be some kind of system
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I like Mike's idea about going to five, except I don't know who
would make the one to five determination. There might be a fight over
that.
The other issue that Mike brought up is something that we are
looking at, too, and that is expanding the clearinghouse to include
pollution prevention information. As part of Title V and small
business, we are supposed to be implementing a program where we
assist small business in looking at pollution prevention.
I think above and beyond just the BACT and LAER that there is
a need to look at pollution prevention technologies. Why just look at
the tail end of the process when, in fact, you can look at the front of
the process and maybe not even generate the pollutants to begin with?
I think that information should be made available to everybody
so they have that ability. I am sure everybody here would like to not
even get into the system by preventing emissions to begin with.
MR. RAHER: Good. I think Don made a fairly good
recommendation in that there seems to be a growing consensus that a
well-developed clearinghouse could be extremely useful and may, in
fact, be mandated under the Act. So, let's put that aside as a potential
subcommittee issue. There are a lot of sub-issues underneath that, and
we will see whether or not we can staff that up and have a further
report back to us with more concrete recommendations we could
consider for EPA.
Let's move on to the second bullet point under the previous
issues which is BACT/LAER certainty. Again, we have several sub-
issues under there concerning fixing of the date for determining
applicable technology such as a completed application, presumptive
BACT/LAER which we touched on several times this morning already,
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I guess I could again try to summarize some of the comments this
morning and from the previous meetings. This can be summarized or
looked at as sort of the moving target concept.
You have people like Dave McAvoy and others who have
identified the fact that when their engineering departments start to
look at a project, it is two years before they actually put the shovel in
the ground, and they would like to say to Dave and to others, what is
the technology I have got to use, and nobody can tell them yet, because
that is going to change. That is one extreme.
At the other extreme is the fact that they get their permit
application completed, it is in the process, they have presented
budgets, they have gone out and gotten specifications, they have gotten
bids, they are trying to get as much information as possible to make
public comment useful, and new technology starts to come in and be
developed, and the whole process is changing right up to the date that
the permit is issued.
So, we really can look at this in terms of maybe two aspects. One
is what you might call the band-aid approach which is that we go ahead
and just pick an arbitrary date that the committee and the agency and
the public feel is acceptable which maybe is the date of the application
being deemed complete.
That really is a band-aid because all of those problems for those
engineers and the regulated community still exist.
Or we go to the presumptive BACT/LAER type of manuals that
California participants have described to us which gives some greater
certainty, does not necessarily eliminate the option of raising
additional issues but provides that certainty from a planning standpoint
and is probably more creative.
I would throw out there that, you know, David Hawkins and, I
think, Chris have raised some issues in terms of how do you change
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may want to throw out and consider certain things such as when you
freeze that for a year, maybe that is the right length. If you freeze it
for three years, do we also...are industries willing to bring into that a
guaranteed ratcheting down year by year until the next time around so
that there is some built-in certainty to this?
Are we willing to say that if an entire industry wants to develop
a, quote, presumptive BACT/LAER analysis that, as one of the
conditions of that, the industry will fund independent research on how
to improve the technologies in the future?
A lot of these are options that are open, and I think that we have
had some creative ideas earlier. So, let's now move our attention to
the certainty issue and the question if we have a BACT/LAER
Clearinghouse, is there a way to provide that certainty to both the
regulator and the regulated community such that the public is aware
and believes that it is still equally or more environmentally protected?
Leslie?
MS. RITTS: I had a question that I thought maybe we ought to
preface some of this discussion with, because, certainly, industry needs
some certainty here, and I note that there were two Environmental
Appeal Board decisions that moved the date back from the final permit
issuance from when BACT was determined.
In a recent data down file to the bulletin board, there was a one-
page memo that resurrected the final, the date of final permit issuance
as the date for BACT determination.
I just wondered if that meant that this issue wasn't on the table
at all in these proceedings?
MR. RAHER: In the committee analysis?
MS. RITTS: No, in EPA's general counsel's analysis.
MR. RAHER: I think that is a valid question. Maybe Vicki can
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I guess the question here is I am assuming that once the
subcommittee agenda was put out and this issue was on it that it is
certainly open for the committee to talk about. If the Agency thinks
it is a closed and dead issue, then we ought to know that.
MS. RITTS: I mean, this may be unfair to put Vicki on the spot
on this.
MR. RAHER: That is why we are talking, to give her two minutes,
two or three minutes to try to compose her position here.
MR. SOLOMON: We are just huddling here. I think our analysis
is we don't see a conflict in terms of the group here, the subcommittee,
pursuing what can be done in terms of any more certainty by perhaps
fixing a more date certain relative to the spectrum of technologies that
would be otherwise available as opposed to the fact that the BACT
determination is not final and complete until the permit is issued.
There is not necessarily a conflict there. There are two aspects.
One is when is BACT final, and that cannot occur until you have the
public review and the permit is issued, as opposed to within the
framework of the analysis, what technologies need to be considered.
MS. SHAVER: Ifl can help bail out on a legal end here, I think
the problem may be that I don't think you can suggest that it is not
final before the permit is issued. Otherwise, it suggests that the public
comment period was meaningless.
So, from a legal standpoint, I think even with what we are talking
about, there would be the opportunity for people to come in during
that comment period and suggest something, and in the unusual case,
it might change things, but you would have trouble if you said it is
final when we propose.
MR. SOLOMON: But we definitely want the group to pursue what
can be done in terms of adding more certainty relative to what
technologies are available and when are they available to the applicant
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MR. RAHER: If I might, then, summarize, is what EPA is saying
is that it is not inconsistent or they believe it is at least available to
consider that some type of determinate date as to which the
technologies would be reviewed may be acceptable but that the
question of whether, at that date, you chose the right technologies and
the weighing process must be considered in the public review process
and cannot be foreclosed right up to the date of the permit issuance?
MS. RITTS: Well, then, what, for clarification, what happens as
has happened in several instances I have been involved with when the
public comments focus on a new technology, a newer technology than
was initially considered in the panoply. I mean, consider the fact that
some of these PSD permits go on for three or four or five years, and
there is a valid point.
I would acknowledge that at some point in there, there may be
some new technologies that are demonstrated that could be considered.
What happens if, during the public comment period, one of those
technologies is mentioned? Or, if it is a shorter period, you know, a
new technology is mentioned?
Those are two different cases which maybe suggests some
different dates?
MR. SOLOMON: Well, it is important to point out, too, that what
we are possibly looking at would be a general EPA policy, but we need
to recognize that at least two-thirds of the States have delegated
programs.
As Andrea has pointed out, I mean, in terms of the State program
and the delegation of discretion, I don't necessarily see a policy being
able to extend in terms of a State and requiring States to have certain
cutoffs, but what we could do is explore EPA's involvement in the
perm itting process.
MR. RAHER: And to that extent, maybe we can be a little more
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our discussion that on January 1, a permit is deemed complete and that
the agency and the applicant and, by what other objective tests, the
public has identified three potential pollution control strategies and
that work continues on that permit.
In April, a brand new company in Chicago develops a totally new
technology, and now our hearing is in May.
One of the question is, now is that totally new technology...we can
talk about it being proven or not proven...open to be used as the
baseline for the granting of this permit? I mean, that, I think...
MS. RITTS: That is the question.
MR. RAHER: That is the question, and it changes if the hearing
is not in May of the same year but in May three years later because of
changes.
MS. RITTS: Right, although there are two facts. Certainly, if
you have a complete application, the agency is supposed to issue that
permit within a year. So, you do have a timeline.
Now, the other side of that is that in a completely determination,
the public hasn't been involved at all in any of that.
MR. RAHER: That is right.
MS. RITTS: I am not saying that they should, but maybe we
should, because maybe it would give us some more certainty on these
BACT determinations.
MR. RAHER: Don?
MR. THEILER: I think we need to recognize what is really going
on out in the real world where we are issuing these permits. For the
most part, once a complete application is in, we do not, at least some
of us, do not entertain new technologies that are developed after the
application. We have enough trouble processing these just with what
has happened before, much less what has happened after.
But we want to really create a level playing ground to reflect
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has happened which is that we do not normally anyway include anything
that occurs after the complete application is in.
I would put on a couple of caveats here, however, in any
guidelines we would recommend. I think that, number one, this should
be the case only if the agency is processing that permit in an
expeditious manner and that some sort of date certain. For example,
if this permitting process goes on over a year or something, you may
want to reopen that question.
Second is that, also, ifthere are substantial changes in the permit
as it is being processed, again, it could be reopened.
I think people have to understand and be clear what we are
talking about, and it is the example you gave where a new process is
developed, a new technology is applied after the complete permit
application. It is not that in the public input process or in the process
of processing the permit we turn up a type of technology that was in
existence before the permit application, and that, I think, is a very
legitimate thing that can change the permit.
That is where public input can often be very valuable. Someone
out there can really know of technologies that have existed that were
not turned up in the process of the application to begin with.
I have some suggestions on the other items here as well. The
presumptive BACT/LAER, I think that is real easy. We have got top
down BACT. We ought to keep it. The presumptive BACT is the best
control technology that we can identify, and that is presumptive BACT.
Unless there are overriding considerations, then, we ought to be
using that technology.
Fixing the source of information from which to choose candidate
technology, for example, limited the search to the BACT/LAER
Clearinghouse, that is a good idea. However, I think that before we
should endorse anything like that, the BACT/LAER Clearinghouse
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contain all of the reasonably available technologies, and until that
time, I don't think you can really do that, because at this point, it
clearly does not.
I think a large part of that problem rests with, unfortunately, the
State and local agencies. We are not getting the information to the
BACT/LAER Clearinghouse. So, I am pointing the finger at ourselves
on that.
Limiting consideration of internationally installed technologies.
On that particular issue, that is a very difficult issue, and I know a lot
of the engineers that work for me would love to go overseas to search
out some of these technologies, and we would be willing to do that, go
along and provide the expertise. I think John would, too.
I would suggest that internationally installed technologies, that
there be some effort as a part of the BACT/LAER Clearinghouse for
EPA to get that information into the Clearinghouse. That is really
where that ought to belong, and perhaps it ought to be addressed
there.
MR. RAHER: Bill Becker?
MR. BECKER: Don pretty much said many of the points I wanted
to make, but I just wanted to reemphasize one or two.
One is that there seems to be this conflict between certainty and
the level of control. I think industry really controls the degree of
certainty they have in this process.
On the one scale that Pat was saying is if industry wanted to
certainty, then they could go along. They could come in. They could
do the top down BACT analysis and go along with the crerne de la
creme of control technologies, and we would promise you a permit
within 30 days or 20 days if you went along with that technology, but
a lot of the delays...I am not saying this is a pejorative sense...a lot of
the delays are caused because of negotiations between where we should
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If we end up closer, closest to the top, then we are going to have
greater certainty in the process, because there will be less quibbling
between the permitting agency and the permittee.
What I hear from industry a lot is that uncertainty is one of the
worst problems they face, more so than stringency of regulation, and
if that is the case...and I can't decide that, industry has to decide
that...but if that is the case, then you should be supporting a top down
BACT approach, because that will give you the certainty you desire.
Now, the issue of late hits, I think, is a legitimate one, of finding
out a new technology later on after you have gone through all this
analysis and then getting a late hit, because that adds to the
uncertainty, and it is a problem. I am sensitive to that personally.
But, again, I think that a good top down BACT determination, not
putting everything on the table and leaving it up to the permitting
authority to determine which control technology they should choose
but, rather, starting at the top and giving the industry an opportunity
to make the case that the top shouldn't be applied, but I think that
that kind of approach, that the late hit issue is, indeed, an important
one.
The way to get around that, I would maintain, is to go with a top
down BACT technology, because the incremental difference between
what we end up with top down and this newer technology, whether it is
from Switzerland or from California, is going to be relatively minimal
compared to some other technologies and may not be worth it from a
regulator standpoint to pursue as vigorously as perhaps we might
otherwise.
If, on the other hand, we end up with a technology or BACT that
is bottom up or is kind of mid range, then all of a sudden, the
incremental difference between the technology that we have gotten
from that process and this newer technology, whether it is an
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So, I think that the answer to the uncertainty issue or the
certainty issue and to the late hit issue is to arrive at a process that
gives us the ability, the regulators the ability, to come up with a top
down approach, a technology that is as close to the top as we can get.
MR. RAHER: David?
MR. HAWKINS: First, I want to second most of Don Theiler's
proposed answers to these issues. Just a couple of other thoughts.
In terms of the freezing of technology, it seems to me the focus
ought to be on the length of time between the completeness
determination and going to public comment on these.
If the system can be worked so that there isn't a long period of
time elapsing, then you don't have to worry about a lot of additional
types of technologies emerging.
MR. RAHER: David, it is Leslie's suggestion that the Act itself
would require the permit to be issued within a year. Is that a
reasonable time frame if that is the time frame that the agencies can
work within?
MR. HAWKINS: Yes. I mean, I think it would be very helpful to
have some additional detail on what it is that goes on during that year.
Is it just getting to that point in the stack takes the year, or is
somebody actually working with the application for 365 consecutive
days or 250 consecutive work days?
If that process of managing the application can be understood and
examined so that the length of time between the completeness
determination and going to public comment can be shortened, that
could deal with a lot of this problem.
I don't agree that legallyor from a policy standpoint there should
be a distinction between whether the technology type was in existence
at the time the completeness determination was made or whether it
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I think that if you are going to have a public comment on the
proposal that is a meaningful one, it has to be open to consideration
of the facts as they exist at the time the public comments are
considered, and ifthat involves consideration of technologies that have
emerged subsequent to the completeness determination, legally and
from a policy standpoint, you shouldn't try to rule them off limits.
Again, the way to avoid that creating a lot of problems for the
applicant is to minimize that length of time.
The other point I would like to mention, and this one creates
some tensions between speed and avoidance of late hits, but some of
the late hits, if you will, are not late from the public's standpoint,
because the public comment period on the application is the first time
they have had a chance to express themselves and be aware of the
issues involved.
Leslie observed that most completeness determinations are made
without the benefit of public input. It would be useful to explore
whether there is an efficient way of flagging issues at that time.
I am skeptical of that, and I don't know if the agency were in a
position to involve the public at that point, why wouldn't that be the
public comment period? I mean, what work remains to be done is
basically the question.
The third...but I do think it is worth exploring whether there is
some way, and it may not be going to public notice.
It may simply be keeping some form of a clearinghouse in the
permitting authority agency that is accessible by bulletin board kind of
thing which basically says here are our completeness determinations,
here is the range of technologies that are included in the application,
something that is accessible to those members of the public that are
interested so that they have at least an opportunity to learn of it early
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That wouldn't lengthen the process necessarily, and it would
provide at least interested people and organizations the opportunity to
find out in an efficient way rather than, you know, trying to do it by
telephone calls and depending on who you reach you may find out
something and you may not.
The third element of this relates to phased projects. I think it
especially problematic to have frozen technology determinations for
phased projects where construction takes place over possibly a number
of years, and there are examples of phased projects which are proposed
to be constructed over a period of ten or more years.
I think it would be very difficult to defend a technology freeze for
that type of very extended construction activity, particularly when the
activity is modular and the subsequent modules should be subject to
processes that allow reviews for what the state of the art is at the time
they are actually being built.
MR. RAHER: So, what you are saying is in terms of any kind of
a recommendation or consideration of a target date for consideration
of appropriate technologies, we have got to consider some effort to
address staged proposals.
MR. HAWKINS: It is a subset of this issue which I think requires
specific attention, and we need to come up with ideas on how to deal
with staged projects and the technology determinations relative to
staged projects. It should be considered as a specific subset of issues.
The final point is on these international technologies. The wave
of the future is to look over the borders, and we do it in international
trade issues, we do it in international competitiveness issues, and we
need to do it in these technology issues as well.
You have these situations where technologies are being installed
in Asia that are being licensed by U.S. companies, and the idea of the
U.S. having a posture that somehow we should limit ourselves in
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What I would suggest is we have got a number of international
treaties or conventions now that deal with air pollution, the ECE
conventions, for example, the bilateral agreements with Canada, other
issues. We ought to get EPA to insert into those protocol discussions
the establishment of some efficient international networks.
We have got in the form of INTERNET and other systems, you
know, up and running international computerized network systems, and
it shouldn't be too difficult, if people think about it. OECD is
functioning with respect to reviewing various types of policies in
Europe. The European Economic Community has its own cross-country
analytical groups.
There are a lot of people out there collecting information, and it
shouldn't be too difficult to come up with reasonably efficient ways to
organize that and make it accessible to permitting authorities and
applicants in the U .S.
MR. RAHER: I think, David, one of the issues that was raised
earlier that involved the question of sort of let's assume that we have
this clearinghouse that is used as a bench mark, in terms of
international technologies, whose obligation is it to ensure that any
technology overseas meets a certain test in order to get onto this
clearinghouse, in order to be used as a bench mark.
I think there were a number of comments suggesting that no one
thought it was an individual industry or individual company's
responsibility to do that, and that is what I hear you echoing as well,
that we still have to know what the test is, we still have to know how
to get it on there, but it probably more is a governmental, EPA,
Federal obligation to be looking at that and working out whatever
these mechanisms are, although anybody, including your organization,
has the ability and the option to always bring that technology to
someone's attention as well.
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MR. HAWKINS: Yes, I think it makes sense for the Feds to take
the lead on this. It is the U.S. Government that is involved in these
delegations that are dealing with the ECE and with the OECD, and
they are the ones that can most efficiently get it on the agenda for
discussion and come up with a country by country or country to country
agreements to actually put something in place in the real world.
But you are right that anybody with a computer and a modem can
access international data bases, and, you know, they are cropping up
by the scores every day. It is just another reason why the Feds should
take the lead on this, because it is better that applicants and
permitting authorities find out about these technologies in an
organized way rather than hearing about them from entrepreneurs like
us with a modem.
MR. RAHER: Leslie? Oh, I am sorry. David had a question.
MR. SOLOMON: I just wanted to follow up on one of the points
you touched on, David, and that was in regard to the public input early
on into the process. I would just like to throw out to the States if
anybody can sort of speak a moment or two in terms of their State how
the public does get involved, if they do get involved, before the public
comment period or what mechanisms exist or what mechanisms could
possibly exist to foster that type of involvement.
MR. RAHER: Do we have any States here that actually get public
involvement prior to? Pamela?
MS. FAGGERT: Our PSD regulations have a requirement that the
applicant conduct a public briefing within so many days of when they
apply for their permit, and it is way before we do anything, so the
public has an opportunity to comment at that time.
Now, it is not something we have to respond to, but the public
does have an opportunity to hear about the project, to ask questions,
and comment if they wish.
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MS. FAGGERT: We just started it, so I really can't give you a
fair answer, but the reason we implemented it is because we saw a need
for it. So, we are hoping it will be.
MR. RAHER: Anyone else? John Paul?
MR. PAUL: When we get a PSD permit or major source permit,
we will advertise that we have the application and make a copy of the
application available in the public library and really promote people
to start looking at the permit early and talk with us early.
MR. SOLOMON: What has been your experience?
MR. PAUL: Well, it has been helpful. It certainly opens the
process early and gets people involved early.
Also, we have then followed up. Through the health departments,
we will have kind of a public briefing session where the company comes
in, explains the application. The agency sits to the side and explains
the process that we are going to go through in reviewing that
application.
MR. RAHER: Ray?
MR. MENEBROKER: In California, we have the California
Environmental Quality Act which is like NEPA, and before a district
can issue a permit, the process of CEQA has to be followed, and during
that is a public comment. It is a disclosure type process. So,
basically, all of the information on the project is out in the public
ahead of time. This isn't during the permit review process, but
certainly the public is made aware of the project, all of the controls
and everything else, well in advance.
MR. RAHER: Before the permit review process starts?
MR. MENEBROKER: Correct. We cannot issue the permit until
we follow that process.
MR. RAHER: But is the notification and the public availability
before you begin the review or during your review process?
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MR. RAHER: Either one. Okay. Don?
MR. THEILER: Just a point. We do not have a process like that.
Our public review period starts after we have done a preliminary
determination. In other words, we have processed the permit
application. We have done a preliminary assessment. That is when our
public...so it is different than what Virginia and John was talking
about.
MR. SOLOMON: Thank you.
MR. RAHER: Leslie?
MS. RITTS: I was going to note that the NEPA process did
provide that analog during the scoping process. The notification is
required for scoping. That might be something you might want to look
at.
Of course, the scoping exercise is much more involved, and it may
not be all that necessary. We wouldn't want to have two full comment
periods, I think, in these permit proceedings unless the first one really
meant something and people really were engaged in it.
I had a comment that not infrequently, the question of the late
hit on a BACT is not a new technology. It is an emissions rate that has
been achieved frequently by another type of source, but the technology
transfer question comes into it.
So, it is can your source meet the emissions rate that another
industry was able to achieve with equipment, you know, that...
MR. RAHER: So, again, you are sort of going back a little bit to
what Bill Becker was saying. The solution may not be quite as simple
as just let's do this.
MS. RITTS: Right, right, because the question isn't as simple as
somebody creates a new widget that goes on a stack. It is somebody
creates something that improves the performance of a technology on
a different type of facility frequently, and you get engaged then in a
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technology, does it work, does it operate under the same conditions,
blather, blather, blather, and that is what really slows the whole thing
down.
Frequently, at least I see that as a way just to stop the project
flat. I mean, it is not really constructive engagement as much as here
is another thing we can throw in the works here at this late stage that
maybe will cause the applicant to just, you know, bag it or will make
it impossible for them to get their financing to go forward.
MR. RAHER: So, in terms of a guidance or a concept here, we
should consider whether there is a way to talk or distinguish between
the technology available and in use at particular industries or
operations versus technology transfer?
MS. RITTS: There may be a need simply to talk some more about
technology transfer and when that is appropriate and when it is
inappropriate. There may be some criteria that all of us can agree on
that will help this situation out in the field.
The other point I wanted to make was on who has the burden on
these international wild goose chases, because I think David is right.
What is happening is the permitting authority or the EPA region is
saying gee, we heard that in Norway, someone is doing this, but there
isn't even a level of review that will either keep that inquiry in the
system because it is a valid inquiry or chuck it as something really very
arbitrary and ambiguous.
It would be nice to have some...we talked at prior meetings about
screening mechanisms. I think this one is an appropriate candidate for
some sort of screening criteria.
MR. RAHER: Certainly, if it appears that we can come up with
that sort of screening criteria for getting things on a bulletin board or
wherever it may be, you are going to be using that same kind of
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saying, it is their sort of bailiwick on the international side. The
burden would likely be falling to them.
Ron?
MR. VAN MERSBERGEN: This is continuing on with the problem
of a moving target. We have two things that are moving here. We
have the permit process moving right along and control technology, and
I guess the question is when they get to the same speed, can we step
across.
I would like to get a couple items on the agenda for...this is
probably more appropriate for the subgroup to look at, but we have to
determine when a technology becomes available. Is it when a vendor
advertises something, or is it when an innovative control technology
appears in a permit someplace or another kind of control technology
appears in a permit in another place or when the permit someplace
else is issued, or is it when a piece of control technology has passed a
compliance test? Is that when it becomes available?
We have to set a time, because through an evolutionary process,
you have to come to some kind of agreement when you step across.
With respect to internationally developed control technology, I
would like to support this. As long as we can entertain arguments that
we have to be sensitive in our permitting process to global competition
and all the rest, it just seems right that the other side of the coin, that
we have to consider controls elsewhere in the world, although I am not
quite so willing to put the burden on EPA's plate to put all of that into
the BACT/LAER Clearinghouse and then if it is not there, we don't
worry about it. I hate to make that step quite so quickly.
That is it.
MR. RAHER: Okay. Richard?
MR. ZBUR: I was actually going to echo many of the comments
that you made. I actually, in response to David's question, I think that
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backlog. I mean, there was a period a couple years ago where it was
taking two years to get through very simple permit applications.
That has been, I think, significantly reduced if not eliminated
now, but I think that is largely due to the impact of the recession and
the fact that no one is permitting anything now in the South Coast as
well as to sort of some resources that have been designated to
eliminate that backlog.
I guess in terms of sort of the one-year period, I think that is
something that would be...it is a reasonable period if we were talking
about sort of drawing a line in terms of freezing where the BACT
determination places. I think that there are times in which agencies
may miss that deadline, and I have some concern over that, but I think
that does give agencies an incentive to actually speed up permitting on
the other side of the coin, and that is something I think industry is
looking for them to do.
In terms of the public comment period prior to the freeze, I guess
I am a little bit concerned about that, because, in reality, I think you
are always going to find opponents to projects, and many of those are
not really based upon the environmental impacts.
That is a problem that we have found with CEQA which actually
does have very limited application. I mean, in a CEQA document,
California Environmental Quality Act, which Ray referred to, you don't
get into the detail in terms of identifying what the range of BACT
technology would be. It is typically well before the permit application
is filed, and it basically applies to usually a new facility.
If you are talking about a modification of something that is at a
facility already, you probably are not triggering CEQA requirements
in any case, because if it is fully offset and there are no or
insignificant toxic impacts, there probably is not a significant enough
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So, the point, I guess, is that I think a public comment period
which is held even after the permit application and is within a fairly
short period of time that has the ability to raise issues relating to the
BACT selection process that should have been considered prior to the
time line that is drawn would be a useful one and I think probably
strikes a reasonable balance.
I think, in that case, industry is giving up a fair amount, because
there are risks, I think, that the agencies will continue to face
backlogs, and while I think we are not experiencing that problem now
in the South Coast, I don't foresee that to be a long-term situation as
the economy picks up.
MR. RAHER: Andrea?
MS. BEAR FIELD: I have comments on several things. First, on
one point David raised on staged projects, I think there is a pretty
simple way to deal with that when you are talking about truly modular
units. You are not talking about a kraft pulp mill where it is
integrated, but you are talking about, for example, three power plants
at the same site.
Often, you go in and you seek a PSD permit and you try and get
all three units permitted at the same time for purposes of reserving the
increment. You don't want to develop that site unless you know you
can put three units there.
However, for purposes of doing the BACT determination, what we
have run into in several States is a process where you go in and you get
the first unit permitted, you reserve the PSD increment if the State
wants to, if the State decides that that is a good use of the increment,
but they tell you to come back 18 months before you are ready to
commence construction on each individual unit and go through the
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There are other requirements that you come back every 18 months
and tell them yes, we are still interested in reserving the increment so
that they are not tying it up if someone else wants it.
At any point in the process, the State can say look, there is
someone else who wants to come in and build. Are you serious about
building these units or not?
We haven't found that to be a real problem.
On an issue that Bill Becker and others have raised, there is this
issue of presumptive BACT, and I talked with Chuck Knauss between
sessions to see if I could invoke his name or Dave Aldorfer's name on
the idea that...and he told me that I could invoke his, that Dave is on
vacation, I can't use Dave's...that there is this idea that if somebody
comes in and says here is the most stringent technology. If you will
accept this, we will give you your permit immediately.
Then there is a penalty associated with asserting your rights.
Basically, if you roll over and play dead, here is your permit. If you
say no, wait a minute, that is too expensive, it may make sense in some
instances, but it does not make sense in mine, there ought not to be a
penalty associated with that.
The point that Chuck asked me to raise is one that Vivian
mentioned earlier, and it is the fact that we are in a global economy.
Just as it may be appropriate to consider whether the Japanese have
developed a new improved technology for removing NOx from power
plants, so is it appropriate to consider that if you do not consider the
costs involved in making certain products, then those products are not
going to be made in this country anymore.
No one is saying well, let's just pretend that this facility...let's
just ignore the fact that this facility is going to be here and let's
ignore the environmental requirements. That is not the point. We
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It is just this is one of the factors that has to be considered. So,
when a product is being...if you will let me, the example of the last
widget factory in the United States. They are going to build one here.
You go to the State permitting agency, and you say to the State
permitting agency here are the different technologies involved. Here
is the most stringent. If you make me put on this most stringent
technology, it makes the product twice as expensive as it would be if
I built it in Mexico or somewhere else, and the State has to consider
that.
Now, the State certainly has the right, and it may be appropriate,
to say I am sorry, that is what you have to do if you want to do
business in my State.
On the other hand, if that permit applicant conies in and shows
it is putting on a technology that reduces pollution significantly, it is
above the NSPS, it does a lot of other things, and it also happens to
employ 2500 people in an area of the country where unemployment is
very high, the State, we believe, under the BACT language of the
statute, the State has the right to say yes, you may build in our State
and meet these requirements.
That is not ignoring the technologies that are out there. It is
doing the balancing, and some States may balance differently.
MR. RAHER: Andrea, that issue, of course, if we look at
alternatives here, if we go back to the whole question of BACT/LAER
certainty, that source, theoretically, could look at the California books
or the BACT/LAER Clearinghouse and see what it is that is
presumptive there and, in Chuck Knauss' concept, could walk in and
say fine, I am willing to do it.
You are not considering that blackmail, but at the same time, if
that same source wants to take the extra time and burden to go forth,
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at least you are reading that to say that there is that flexibility to look
at it.
MS. BEAR FIELD: Yes, and as far as blackmail, that is true, but
what I am saying is if I come in and I say I want to exert my rights, I
want to say that is not BACT for my process, I shouldn't be told okay,
fine, you wait an extra two years to get your permit.
I can understand I have got to go through more procedures. I
have got to make a demonstration that an alternative balancing
approach is appropriate in my case. That will take more time.
MR. RAHER: Does the BACT/LAER Clearinghouse tend to
address that issue? In other words, it is not a question of an ad hoc
identification at this time. Theoretically, I can go for this degreaser
issue, and it is really not an issue right now.
MS. BEAR FIELD: The issue that I find is the one...and I think
Don raised it at our meeting in March...is if I go in and I say I want
to...I believe BACT is something other than the technology that my
neighbor down the road or my neighbor three States away has put on,
that Don doesn't say to me well, okay, but here is my stack of
applications, and you are at the bottom now, because you are going to
try and do it rather than just taking your place in line.
I am just saying you should not be penalized in the processing of
your permit. It will take more time. The more complicated that an
individual permit applicant makes the permit, makes the application,
the longer it is going to take.
MR. RAHER: Okay, but from the committee's standpoint, if we
can provide the other improvement, that should reduce the time for the
majority, and then it is the individual permittees' problem if they want
to make it more complicated.
MS. BEAR FIELD: That is right.
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MS. BEAR FIELD: And one final point building on something
Leslie said but also going back to something Dave McAvoy raised first
thing this morning, and that is when people come in and they say here
is the technology that is available for some other industry and we think
it ought to apply in your industry.
There are times when that may be, as Leslie says, blather,
blather, blather, to delay, but there are times when a technology may,
in fact, be transferrable, but you simply can't be certain how effective
that technology is going to be. It looks like it is promising, and the
applicant is willing to consider putting on the technology, but what the
applicant doesn't want to have happen is that you put it in the permit
and then, despite everyone's best efforts to make that technology work,
it just doe sn't work .
There has got to be a process where you can put something in the
permit and say for the first six months or whatever a reasonable
amount of time is after you start up the project, you look at what that
technology can achieve.
If you have to adjust the permit condition after that, you do it
without having to be accused of increasing your emissions by a
significant amount and, therefore, having to go through the PSD
permitting process again, because that really is defeating. It
discourages people from putting on innovative controls.
MR. RAHER: All right. Focusing again on this BACT/LAER
certainty, Ray?
MR. MENEBROKER: One comment I would like to make is that
I am not quite sure what you are looking at in terms of fixing the date
the application is deemed complete, but depending on the amount of
certainty you are asking at that point, you are going to have to realize
that depending on how certain that is and how firm that is, you are
going to force agencies into the position that they are going to have to
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you are going to have trouble getting that application complete in any
length oft i in e .
It is just going to extend the time to complete, not to issue the
permit.
MR. RAHER: Well, Ray, remember, let's go back to tie this back
to the access to the BACT/LAER decisions. If we look at California
and we look at the books that you and Mike described, as of a certain
point in time, it sounds as if those are indications of what the
BACT/LAER determination will be. It defines the scope of what
technologies are relevant.
So, I think that is where the focus of the discussion has been so
far. Is there a way to define what the scope is?
If the applicant within that scope chooses to, you know, use the
wrong technology, that is certainly something that is going to be
developed during the public comment period, but it is the scoping
process, not necessarily saying that the date we deem it complete, we
are free zing this determination, because, as Chris said, that is not
going to fly in the public participation period.
MR. MENEBROKER: In our case, you know, if you have a
presumptive type BACT, I would agree with that, but if you are talking
about the type of a system that Andrea is talking about where you are
going to come in with three or four different systems and choose one
of them, the agency is going to have to take a long hard look at that
before they deem that application complete to make sure that you have
everything in there that they think should be in there.
MR. RAHER: Well, let's look at it that way. You have just given
two very good examples. One is with the presumptive; the other one
is with Andrea's.
Let's assume that the source comes in with two or three
technologies. It has chosen to take a more complicated, longer
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when it says okay, option 2, 3, whatever it is, we will agree with you
that is the one.
Then that raises the second question. From now on in the
process, is that time frame, that date, whenever it may be, January 1,
is that the date when the relevant technology has sort of...we have
drawn a circle around it? I think that is how people have been...
MR. MENEBROKER: Yes, but what I am saying, though, is that
the permitting agency would take a look at that to make sure that the
appropriate technologies are all covered, and that is going to take a
little bit o f t i m e .
MR. RAHER: Right, okay.
MR. MENEBROKER: If you don't have to do that, you can deem
it complete much sooner. So, you are going to add a little bit of time
there.
MR. RAHER: Good point.
MR. MENEBROKER: And I think, you know, that comes back to
the point that you keep saying that well, if you need the presumptive
BACT, then we give it to you; if you don't, we are going to penalize
yo u .
I don't look at it that way. The way I look at it is if you come in
with the presumptive BACT, we already have done the work. We can
process your permit much quicker. If you are going to try and justify
some other one, then we are going to have to look at your justification,
and it is going to take longer. That is the way I would look at it.
MR. RAHER: Right. Praveen?
MR. AMAR: A number of comments, I think the balance between
the certainty which Bill had mentioned earlier and then moving the
technology forward, where we come from, the States, I think instead of
limiting consideration of internationally installed technologies, we
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That is what has occurred in northeast States, in California where
you have looked at control technologies in Japan and Germany and
seen how they worked and what they cost and whether they were
t ra n sfe rra b le to this country. It is going on now. It has been going on
for the last ten years.
Just as an example would be the retrofitting of power plants in
southern California in 1993, this year, taken after SCR was proven
effective by many people in 1980, 13 years ago. So, it has taken that
long, taking into account internationally installed technologies. If you
didn't, it will take much longer.
So, I think I am...
MR. RAHER: Again, I think a lot of the comments here were not
that the technologies internationally shouldn't be considered. It is the
process by which they get into the system.
MR. AMAR: That is right, the consideration between certainty
and moving the technology forward.
MR. RAHER: Right.
MR. AMAR: And we come on the side of looking at those
technologies carefully and then putting them into the LAER/BACT
Clearinghouse once you have convinced yourself that those numbers
are right.
Number two, I think the whole issue of what is inside the
Clearinghouse data, the quality assurance and the quality control that
was mentioned earlier. I think either you have a top notch
clearinghouse which has correct data and quality assurance and quality
control, or you simply have a starting point. You see what is in it, and
then you move on and look at a lot of the other data, thinking this is
not the latest information or the correct information, just a starting
information.
So, I think you cannot have anything in between. I mean, you
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one which means maybe this committee should look at what does it
take, the resources to update the data, to assure the data, quality
control the data, and then send information to the States that need it.
Number three, it was mentioned that there are a number of
clearinghouses outside this. There is a California clearinghouse.
There is a Bay Area clearinghouse. I think that is a good thing. I
would rather not have, you know, one clearinghouse at the EPA level
if there are other States who have their clearinghouse on a small scale.
I think it works. They have less information to deal with. They
are closer to sources, and I think maybe the issue is how that kind of
data could be put into the EPA's clearinghouse rather than
discouraging other clearinghouses.
MS. WEGMAN: Praveen, do the NESCAUM States have
clearinghouses?
MR. AMAR: No, we don't. I did work on the ARB's
clearinghouse 13 years ago, and I think it is still working which is very
nice. I think those clearinghouses are useful to get data from those to
the larger clearinghouse you have.
MR. RAHER: Don?
MR. THEILER: I need to respond to something that Andrea
brought up. She has been quoting some of my statements at the March
meeting, and I appreciate that, and I still stand behind them, but some
of the examples that she used I have a lot of trouble with.
This idea that somebody comes in and says I am going to create
2500 jobs and if you require us to put on this technology, we will go to
Mexico, as far as I am concerned, that is not a criterion in any shape,
form, or manner for making a decision. I mean, I have had...I want to
give a couple of examples of things that have happened in the PSD
program that I have been associated with or am aware of.
One is that I know of a company that went to two States. A river
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They said we want to bargain. I mean, they were pretty explicit
about this. We will go wherever we get the best deal, one side or the
other, and they did. I mean, that is the kind of thing that States get,
the kinds of pressure that they get.
Another instance that happened, a very high-ranking State official
put his arm around an air director and said I want that facility in this
State. You make it happen. That is some pretty heavy political
pressure that can be put on individual States to make approvals.
We have to have very good, explicit guidelines as to when you can
deviate from the presumptive BACT which I would contend is the best
that has been put in a particular area, and only those guidelines can
be used to deviate.
I can't think of a better reason, personally, than when this high-
ranking government official puts his arm around me and says I want
this facility, but if it ain't in the guidelines, it shouldn't go.
So, we need to have these kinds of guidelines put together, and
we need to have EPA overseeing the implementation of those
guidelines very, very closely so that these kinds of political pressures
that are brought to bear do not bear fruit.
MR. RAHER: Mike?
MR. HAWKINS: I just wanted to say that wasn't in my 1979
guidelines.
MR. RAHER: We are glad you brought that up.
MR. THEILER: Da ve will put his arm around you if you want.
MR. RAHER: Yes. Mike?
MR. BARR: Back to the basic technology issue number two, the
basic concept of BACT being that it works best when it is incorporated
into the design of the facility from the beginning, it certainly makes
the most sense, I think, from a practical point of view, to know what
the best available control technology is going to be at that time when
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Now, unfortunately, it usually takes a while between that time
and the time the application is even filed, much less the time it is
complete. So, I think in terms of the basic concept ofBACT, it makes
sense to freeze it, if you will, or have a cutoff date for the particular
project when the application is complete and then follow it by the
highest quality permit process you can have, clear completeness
criteria and a quick decision and a quality proposal so the public can
review it and be assured that, indeed, at that time when the project
was designed, it was designed with the best available control
technology.
MR. RAHER: So, Mike, you are saying...
MR. BARR: And there is a quick public comment at that point.
MR. RAHER: You are suggesting that even though that BACT
determination is very important in the design phase that there is still
some merit to having that time period be when the agency deems the
application complete.
MR. BARR: Well, I just think that, from a practical point of
view, it is probably the earliest time in the permit process, but I think
the BACT review in every case is, to some degree, historical as to that
particular project in that if there is a change in technology, it doesn't
affect that project. It affects the future projects.
MR. RAHER: And that also places pressure on the permittee to
try to get that application deemed complete as quickly as possible and
not fool arou nd .
MR. BARR: Well, I think that is right. I think that is exactly
right, and it also puts pressure on everybody to frontload the process
so that as many of these decisions about what is in the range of
possible BACT is clear at the front when the project is designed.
That is particularly important these days for projects that have
a useful life measured in months rather than years. We have certainly
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months. So, we can't have a process where the project is redesigned,
in effect, twice because of delays or a moving target.
In terms of the international BACT requirements, I think it was
alluded before there are a series of absolutely unbelievable horror
stories in that area, and I think the solution should be that no
technology even gets a single star unless it is verified or verifiable by
EPA as if it were used in the United States.
So, unless EPA can get samples or can get performance results or
can pay surprise visits on plants that are actually using that
technology, it should not go in the data base at all. Otherwise, it is
just an advertisement. It is certainly far too open for abuse by our
esteemed trading partners, and that really is a fatal flaw in the system
if international ideas or advertisements get into it.
In terms of the penalty associated with asserting your rights, we
certainly in California have seen the completeness process abused to
the point of a serious problem from time to time. I think the solution
is clear completeness criteria.
That system was used as a model to some degree for Title V
permitting, and it was built, in turn, I think, on some experience with
PSD permitting. Clear completeness criteria are essential to making
it work. They have got to be free from subjective interpretations.
The CEQA layer on top of it in California which is our little
NEPA that Ray referred to has clearly had its own cycle of abuse and
correction. Fortunately, now we are more towards the correction end
of putting a CEQA layer on top of completeness criteria, and I think,
in general, it is an unworkable approach towards this particular issue.
MR. RAHER: Let's take the last three comments and then allow
the public to have any comment, and then we will break for lunch, and
we can continue this after.
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MS. BEAR FIELD: A few comments. Ray, when someone goes in
and says I don't want to commit to the most stringent level, because I
think there is something unique about my plant, I am not saying that
that person...I guess what I am saying is if the range of technologies
that that person puts in front of the California Air Resources Board
includes presumptive BACT that the company not be penalized and told
well, since you are basically saying you are going to use the rights that
you are given under the statute, we are going to keep the clock running
longer than we would if you just picked presumptive BACT right now.
In other words, if a new technology comes in three months later
and you would not impose that on someone who wasn't going through
the process, we don't think you should impose it on us, but if you
would on somebody else, then certainly you should on us.
On the issue of international technologies, just one of the points
we found out is that sometimes when a technology is used somewhere
else, it is not commercially available. It is on a pilot project.
Particularly in Japan back in 1980 when SCR was supposedly
developed, it was on a...they might have called it commercially
available, but it was the most coddled SCR module on the face of the
earth. I mean, it was...and there is nothing wrong with that. I mean,
that is how you make sure you test the technology and all the rest of
it, but in 1980, I would not have said that was an available technology.
By '93, probably it had been available for a lot more than just a
few years. So, somewhere in between, it probably became available.
I think somebody mentioned earlier today the way to encourage
these technologies, unfortunately for better or worse, is in the
nonattainment areas when you have got offset requirements, and that
does encourage people to try things and make them work sooner than
they otherwise would have to.
But that raises the last point, and that is Congress, in its wisdom
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areas, you put on lowest achievable emission rate technology, LAER,
and it said in attainment areas, you put on BACT, and in BACT areas,
the attainment areas, there is a weighting of factors.
I want to make it clear, Don, that when I raised the specter of a
company coming in and saying what can you do for me, that was not
based on anything that you said at any meeting. And I knew when I
said it that it was controversial, but I think it is naive of this group to
think that that isn't going to happen.
Unless you want Congress to change the statute and say all
technology determinations on sources, even if they are in attainment
areas, it is only to be the most stringent technology like LAER, then
industry is going to be doing just what I described.
It may not be attractive to you, and I am saying it on behalf of an
industry that really can't do that. I mean, on behalf of the utility
industry, I can't say well, gee, I don't like doing business in Virginia
if I am Virginia Power Company. I am going to build my plants in
Virginia if I want to do business. I can't switch.
On the other hand, if I am Virginia Power Company, I may be
providing power to companies that are moving out of State, out of the
country, and I am concerned about that. I am concerned that we are
doing things to make permitting here much more difficult than in other
parts of the world, and we are losing industries, and as long as the law
allows people to sidle up to the governor and ask the governor to put
his arm around you, it is going to happen. The law allows that right
now, and I think in order to get more facilities here, you have got to
take that into account.
I am not saying you roll over and play dead any more than I would
suggest that the States ask me to roll over and play dead when I come
in and get a permit. That doesn't mean you accept the least stringent
technology. It is just one of the factors to consider in making the
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technologies, the $6000, $12,000 per ton removed that doesn't get me
very much more than the next technology down to get this plant here,
and I think States are going to want to do that, and under the law, they
have the right to.
MR. THEILER: I need to respond. I never mentioned any
governor, you know. It was high-ranking State official.
MR. RAHER: I was wondering if you...
MR. THEILER: I never mentioned Dave Hawkins, either, but I
don't think we can leave it so open that the State can just make the
decision based on whatever it feels the criteria need to be, because
then you could make it on the basis that the high-ranking government
official puts his arm around you and says he wants it and, therefore, it
becomes.
MR. RAHER: Well, there is clearly some in between here in the
sense that if you have a presumptive BACT, it is there, as Andrea said.
If there is something else, if you want to argue within the constraints
of BACT which is an old, albeit difficult methodology to pinpoint, that
is something that happens every day.
I think the committee here is looking at ways to improve the
process from the standpoint of the straightforward BACT
determination. This question about I am going to build and it is 2500
jobs issue is the economic analysis portion of a BACT determination
that occurs in any State today and will continue, because it is
permitted under the law.
The method of carrying out that analysis, whether it is an arm
around the shoulder or the presentation of an economic determination,
is obviously open to each issue.
Vivian?
MS. MCINTIRE: Since I may have started some of these
comments by referring to being in a global market, I want to also make
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even further and say I do not believe international BACT ought to be
in the BACT/LAER Clearinghouse. If you want, from a business
perspective, to drive industry out of this country, what you do is pick
and choose the most stringent technology available anywhere in the
world and stick it on requirements for U.S. companies.
You assure yourself that people are going to look elsewhere,
because those requirements, ifyou pick, let's say, Japanese technology.
We have a few markets in Japan. You would force us to have to meet
some perhaps undemonstrated technology for a country where we have
absolutely no way of marketing, you drive up the cost of our products,
you cut off markets that we might have elsewhere because we are less
competitive.
So, I would go so far as to say if you want to have someplace
where you have a piece of information on international technology,
fine, but it is not to be, I think, considered as part of what you look at
on a BACT/LAER Clearinghouse.
I think that issue also goes to the comment that some people have
made about just accept top down BACT. Certainly, if you put it in a
BACT/LAER Clearinghouse as BACT, demonstrated or
undemonstrated, then we are always going to be fighting or defending
against that, and I think that would be absolutely wrong.
If you do decide to use international technology as a piece of
information someplace, I think there is a mandate there that you also
understand all of the things that go along with it, and even in the
BACT/LAER Clearinghouse we have now here, you keep getting permit
numbers that are lower and lower and lower.
Well, there are tradeoffs, because the people who build and
install these pieces of equipment do not necessarily guarantee a 0.1
NO, and a 0.1 C02 or a 0.1 anything else. So, when you have a low
number in one pollutant, you often have a higher level in something
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All that information needs to be available in the decision and in
the data that is recorded in the Clearinghouse.
I guess those are the comments I want to make on this.
MR. RAHER: Bill, one last comment before we open it up?
MR. BUMPERS: Actually, I started out with a lot of them, but
Michael and Andrea covered almost everything I was going to say. I
wanted to add one other thing to sort of echo one of Michael's points
and also that Gregg Worley brought up.
It might be a possibility for States or even regions to develop a
type of manual for some of the more predominantly submitted permit
sources, and I am thinking here principally of electric utilities.
Since 1976 with PURPA, we have moved more and more into a
competitive bid process. Now, something like 2 6 or 28 of the States
require competitive bid processes for any time a utility deems that it
needs additional capacity, and that is not only for conservation is able
to compete but also any other type of generated capacity, including
solar, geothermal, as well as traditional fossil facilities.
It is almost impossible for a utility or a utility subsidiary or an
IPP to be able to come in and make informed bidding when there is so
much ambiguity as to how much they are going to end up having to
spend on the control technology at the back end. So, it is important,
I think, to at least in some fashion through the manual to provide a
framework within which they can make their cost determinations to
submit a bid.
Now, how we can move from there into the next level of assuring
them that in the time period between the competitive bid, permit
submission, and then final BACT determination the costs don't ratchet
up exponentially to make the project inviable and, in that same
fashion, potentially threaten electric reliability is something that we
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That having been s a i d , I would say it makes in e nervous when we
say we are going to try to impose a guidance on BACT for a
pa rt icu la r.. .fo r the utility industry as a whole based on what I have
seen with some of the RACT determinations.
As an aside to that, sort of to go to Don's point, this economic
consideration or economic impact consideration, I think, was clearly
anticipated in the statute. I mean, as Andrea points out, it is in there
for BACT, and it is not in there for LAER.
Plus, you are not going to get into a situation where the company
comes in and whipsaws two States to the point where they don't have
to do anything. You always have the backstop within the BACT
determination that they can't do anything less than NSPS no matter
what the economic considerations. So...
MR. RAHER: Well, certainly, this committee has not been
charged with trying to redeploy...
MR. BUMPERS: NSPS.
MR. RAHER: NSPS or BACT or LAER. I think it is a question
of procedurally addressing that.
MR. BUMPERS: Well, the point, though, is that I think economic
considerations are critical, and I think they are a part of the BACT
determination, and to suggest that having a facility that wants to locate
somewhere and makes the case that economically for the region as well
as for the company, it is going to be a significant impact if LAER is
imposed as opposed to a BACT with economic considerations is simply
wrong.
MR. RAHER: We have come to the point from the public
standpoint that I would like to invite anyone in the audience who has
an issue to raise that is related to New Source Review and the issues
we have been discussing this morning to please step up to the
microphone, identify themselves, and we would be happy to receive
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MR. PHANEUF: Thank you. Dave Phaneuf from Solar Turbines,
Incorporated, San Diego, California. We are a manufacturer of small
gas turbines less than 20 megawatts.
I would like to add I had a paper passed out for your
consideration when we discuss pollution prevention later on in the
meeting.
Also, very quickly, in terms of uncertainty, I think it is pretty
clear that some degree of uncertainty is better than certain peril. I
would like you to consider that when you talk about presumptive
B ACT.
Two and a half years ago, I attended an American Cogeneration
Association meeting in Mesa, Arizona. At this meeting, several of the
large gas turbine manufacturers showed their new dry low NO,
technology, technology they proudly said would be able to reach the 9
part per million level currently being required as LAER technology.
After all these presentations, someone in the crowd proudly got
up and said gee whiz, now that you have reached 9, we can add further
controls and get down to 3. At that point, everyone in the crowd
laughed.
No one is laughing right now. Clearly, this is being done.
In terms of LAER as currently practiced, it really seems to
indicate that regardless of what we do as manufacturers, post-
combustion or add-on controls will always be an issue and
presumptively will be added. This is a severe disincentive for us to
make further progress. Clearly, we are adding costs without receiving
a whole lot of benefit.
This will exist unless there is some acknowledgement that
economics currently are being used for LAER and that, in some
extreme, there is a cost-benefit relationship. If it were not currently
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catalytic reduction device is good, then two should be twice as good.
We clearly don't see that, and I hope IL didn't give anyone ideas.
BACT analysis as currently being practiced. Primarily in my
mind, I have heard the E3 term or I call it the three Es, but primarily
we are looking at economics or dollars per ton, and I think in terms of
the dollars per ton, there is a lot of frustration. It has been shown
that there is no reasonable standard. There is nothing to shoot for.
There is a moving target, and it comes down to a simple comparison.
Again, I have heard the phrase well, it is just an inefficient
company, it shouldn't exist. It is very unfair to say that, because it is
very difficult to compare one company to another. They often face
very different circumstances, and I don't think BACT was meant to
drive companies out of business.
Even though economics are considered in the BACT analysis, I
think the average cost methodology...and we touched on this
briefly...does not properly evaluate add-on controls. By lumping all
control costs together, the extremely high cost for a marginal benefit
is hidden in the overall analysis.
I would hope that this group would look at the incremental
costs...I know there has been discussion before...and provide some
guidance in terms of add-on control technologies how incremental costs
should be evaluated as they relate to average costs.
My last point is that BACT and LAER should consider not only
a class and category of source but also the end use of the equipment
and possible alternatives. I will give you a very quick example that
was related to me by someone who purchased alternative equipment to
mine.
Initially, they new they needed a small prime mover. They
considered a gas turbine. They looked at the LAER requirements for
a small gas turbine and decided economically it didn't make much
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Their next step, they looked at reciprocating engines. They
looked at clean-burn reciprocating engines and found, under LAER,
they would be required to also use an add-on technology that would be
very expensive.
I should say from the gas turbine at about 0.5 gram per
horsepower-hour, they next evaluated this recip at 1.5 grams per
horsepower-hour.
They did find a solution, however. The solution was to go to a
rich-burn reciprocating engine. LAER requirements there were an
add-on device but a less expensive one. They agreed to these
requirements, ended up with everything added on to the rich-burn,
achieving a level of approximately 2 grams per horsepower-hour.
So, clearly, by imposing these requirements, what we have done
is we have forced the applicant into a decision where he has picked a
higher polluting device. I guess my point is clearly in setting limits,
you do have to consider these alternatives.
Thank you.
MR. RAHER: Thank you. Any other comments from the
audience?
If not, we will break for lunch as we did yesterday and be back
promptly at 1:00 o'clock so we can continue.
(WHEREUPON, a luncheon recess was taken.)
MR. RAHER: I have just a few housekeeping issues before we get
back to the BACT/LAER issue to let you know what we hope to
accomplish this afternoon.
First, we are going to put out the dates that appear to be the best
dates for the next meeting of this subcommittee which will be at the
end of September, and, hopefully, we have got enough time here so
that people can go ahead and get their calendars cleared and
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Secondly, what we would like to do is we have identified earlier
this morning Class I issues that could be fit into subgroups. We would
like to try to put some people together in subgroups, and, of course,
it probably means we are going to have to serve on more than one
subgroup.
We also have some subgroups that apparently look like they come
together fairly nicely in the BACT/LAER issue, and we are going to be
asking for participation on those as well.
Finally, before we get back to our discussion, there seemed to be
a growing consensus among the no n -EPA participants in the
subcommittee that the existing source question on Class I areas was
one that really does need to be addressed and that it would make our
work a lot easier. So, I have taken the liberty to try to draft up a
paragraph that I would like the committee to just take a look at
briefly, and if we can agree on it, it would be nice to officially notify
EPA that that is something that the committee thinks the Agency needs
to be working on in order to make our lives a little easier on the New
Source Review side.
Then we will get back to discussing BACT and LAER and, as I
have said, hopefully break out of here in time for everybody to make
their various planes.
Going back now to the scheduling, Lydia and the EPA staff and
the various environmental meetings and so forth that are going on
around the country in the next couple of months, it appears that
September 28th and 29th are the best times to meet for this committee
to convene again. So, right now, that will be the date that EPA will be
working on to try to convene, and I am assuming, Lydia, we would be
meeting here again and that you would make the necessary
arrangements?
MS. WEGMAN: Yes, that would be my expectation. I also want
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obviously like to know in advance and see what we can do about
arranging substitutes for those who can't come, because we want to
make sure we still have a fair representation of all points of view.
MR. THEILER: How do you want to handle it if you can make
one day but not both?
MS. WEGMAN: If you can come for one day, that would be fine,
and we will not get a substitute.
MR.RAHER: So, we will mark our calendars for September 28th
and 29th to be back here and convening.
Before we go ahead and start staffing the Class I issue subgroups,
I wanted to put up on the board for your review what appear to be
subgroup areas that are falling out in the BACT/LAER area so that
you will know the number of subgroups. It looks like we are going to
have about six, and you can allocate your ability to participate in the
areas you would like to participate.
We have got them up on the screen right now. The first one will
be the BACT/LAER Clearinghouse and a presumptive BACT, the
various issues that we talked about this morning, the ones that are on
the agenda that we identified would fall under there.
The second one would be BACT/LAER criteria, basically starting
with that policy which the Agency has in this area and trying to
identify are there gaps, are there areas of clarification that are
necessary, how can you improve the use of those criteria in the New
Source Review program.
Then, finally, what procedures, protections, issues do we have to
address in terms of accommodating innovative control technology, the
implementation of that technology and the risks that go along with it.
Of course, that would include pollution prevention, because, many
times, pollution prevention, although it can be in a process form and
so forth, it also can be in the development of new technology. So, it
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From the standpoint of BACT and LAER, those would be the
three subgroups that we would be looking at.
Now, let's just go over a minute how the subgroups are being
viewed. Hopefully, they are small in size, three, five, seven,
somewhere in there. We don't want to have another entire
subcommittee being the size of this committee.
They would get together and initially do the f oil owing, by
meeting, by other people participating by the telephone. I mean, we
are in the electronic age right now. We shouldn't be constrained by
the fact that we have to all be together in the same room.
We would be looking, hopefully, in about one month, by the end
of August or the beginning of September, that nothing more than
whoever is heading up one of these groups and trying to keep it
organized would be providing Lydia and the Agency with just a short
report indicating where the subgroup has gotten just as a sort of a
cross check that we are not all waiting until September 27th to do our
work, and identifying any issues that have come up that appear to be
thorny and any support that the Agency could provide the subgroup in
order to assist it in trying to achieve its goals.
Then, about a week before we get together on the 28th and 29th,
we would hope that a more detailed report with specific written
recommendations to the committee would be submitted to EPA, and
EPA would arrange to have those transmitted to each of us as
committee members.
Now, the goal...and, of course, all of this depends on the details
and the difficulty that each of these subgroups finds and the issues
they have to address...the goal will be to attempt to identify specific
concepts, language, procedures, et cetera that we as a committee could
recommend to the Agency in these various areas to improve New
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Obviously, if every subgroup came back and solved every issue on
a consensus basis, we would be doing better than we probably could
ever expect, but maybe we will start to piece together some of these
individual items.
That is the goal I think we need to all have in front of us, and
that way we can shoot for that. Even if we fall a little short, we will
be doing pretty good.
With that in mind, why don't we try to, with a show of hands, try
to see if we can't get some people on the various subgroups, and I
would like to go back to the Class I subgroups, Bill, if you could those
back up on the screen. The only reason I want to start with those is I
took the liberty of strongarming three people to already head them up
so that we don't have to have a reticent show of hands.
On the procedures and coordination side, Leslie has been kind
enough to volunteer to sort of try to organize and at least keep that
one moving and get whoever volunteers for it to move ahead.
On determination of adverse impacts, Rich Fisher has agreed to
head that one up and try to move that along.
By the way, on all three of these subgroups, because the Forest
Service and the Park Service are so integral to the Class I areas, I
think it was the feeling of a number of people that it is the agency that
is the member of this committee and not any one individual. So, the
agency has the ability to staff all three of these committees, and they
will be looking for other individuals within their agencies that have
expertise and interest in this so that we will have their participation
on all three of these.
And in terms of mitigation of source impacts and the permit
issue, Mark Carney has agreed to sort of try to head up that a little
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MS. WEGMAN: I just wanted to clarify. EPA will also be on all
of the subgroups, just in case there was any confusion on the agency
question. EPA folks will be on all the subgroups.
MR. RAHER: I definitely didn't mean to exclude EPA. That
was...yes, that is right...an assumption.
So, if we could, I would like to go back to the procedures and
coordination one. You have had a chance to look at that paper and the
issues. If I could, I would like to see a show of hands of some people
that would...assuming, again, EPA will put somebody on here, Forest
Service and Park Service will put someone on here. Now we need to
have the States and the private interests also involved.
Bill?
MR. BECKER: May I ask a question?
MR. RAHER: Sure.
MR. BECKER: Are we limited to just one, and do we have to tell
you today who those people are going to be?
MR. RAHER: You are not limited to just one, and you don't have
to say who it will be today. I mean, we need to know very shortly so
that the people can go ahead and...
MR. BECKER: The reason I mention it is for the States, we have
probably five or six of us, and we may want to give some thought, more
than just a few seconds, to coordinate who might have the most interest
and strengths.
MR. RAHER: Well, I wouldn't...I mean, I would be willing to
consider, unless somebody has a concern, just as we have done with
EPA and the Federal agencies, we could just say there will be a State
representative on each committee and then let you all get together and
identify who it would be.
MS. WEGMAN: Yes, and if you want to have two, that is all
right, too, on subcommittees.
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MS. SHAVER: On behalf of a group that only has three
representatives...
MR. RAHER: Right.
MS. SHAVER: It may be in our interest to do something similar,
especially since there are going to be six committees.
MR. RAHER: Right.
MS. SHAVER: So, can we just have a designated seat?
MR. BUMPERS: How many people are going to be on these
subcommittees?
MR. RAHER: Well, hopefully, I mean, right now, we are looking
fo r...
MR. BUMPERS: The committee of the whole will run.
MR. BECKER: One for all six.
MR. RAHER: That is right. Again, remember the fact is the
subcommittees will be likely doing a lot of spade work and talking to
people involved. It is to put together a report to come back to the full
committee anyway. Everyone is going to get a chance to see everything
and discuss it in these kinds of meetings before anything is
recommended to EPA or we even have a chance to see if we can be
recommending.
So, again, those permitting governmental authorities are so
essential to the program that it seems apparent to have them on each
one of these committees.
And, Bill, since you raised your hand, I would be happy to
entertain whichever one of these committees you would like to be on.
MR. BECKER: I would be happy to...my first preference would
be number 2, adverse impacts, increments.
MR. RAHER: All right.
MS. WEGMAN: Do you want to give people a chance to think
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MR. RAHER: Well, we can do that, too. Do we want to think
about it and get back on a break? I don't want to postpone this too
long. There are people who are going to be trying to get planes later
on. I don't want to leave this to the very end, but if want to, we
certainly are going to take a break around 3:00 o'clock, 2:30 to 3:00
o'clock, and you can think about this and come back on that.
Would that be easier for everybody to consider it a little bit
more? David?
MR. HAWKINS: Are you wedded to having six committees? I
think that is going to be difficult for the three of us here to serve on
six committees. I don't know how we will handle that.
MR. RAHER: Well, again, first of all, I would hope that you
would be able to participate by telephone call as well if it is on more
than one committee, and just like other participants here, there won't
be...every industry group is not going to be represented on every
committee. They are going to have to wait until they see the input,
and particularly for the public interest sector, we would hope that, you
know, the Park Service and others are also raising some of the same
issues.
So, it is one of the more difficult issues. We tried to keep these
subcommittees in as few a number as possible for that very reason, but
it is pretty hard not to just come up with one issue as we have done.
MR. THEILER: Pat, do you have a leader for each group?
MR. RAHER: For the Class Is, we do. I have not, because we
were just trying to create this over lunch, got one for the NSR ones,
for the BACT.
MR. THEILER: Who is the leader for the determination of
adverse impacts group?
MR. RAHER: That is Rich Fischer, and mitigation is Mark
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All right, consideration, then, we will break at about 2:30,
quarter of 3:00, and then at 3:00 o'clock, we will come back and then
people can have jotted down on their little note pads what committees
they would like to participate in.
One last housekeeping matter, then. We are going to pass around
right now sort of the proposed paragraph that I would suggest as a
committee...and I will be happy to take the leading oar on this as the
private sector co-chair here...we transmit to EPA as a recommendation
of the subcommittee right now that some procedures or mechanisms, et
cetera, be established and that they inform us as to those to deal with
the existing source issue impact on Class I.
That seemed to be a relatively constant theme yesterday and also
one that is beyond the scope of our mandate here. So, this is sort of
just the proposed paragraph. I tried to talk to a few people around to
get input in this.
We don't want to be specific and hamstring EPA, but we want to
also be as certain as possible, since it impacts our ability to handle
some of these New Source Review issues, that there are tangible, real
alternative methods and considerations being given to this new source
issue which we all agree is a real issue for Class I areas.
So, I hope I have not put anything out here that is extremely
divisive. Try to make it as milk toast as possible for a committee to
recommend to EPA.
If there a re ... V i via n ?
MS. MCINTIRE: I assume we are talking about the paragraph?
MR. RAHER: Yes
MS. MCINTIRE: Okay. I know that there are the SAMI
concerns, I guess is what they are calling it, the effort of Tennessee,
Virginia, and others to get together to try and resolve this problem.
The last part you have in here of having EPA establish...you said, to
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participation a specific regulatory process to resolve the Class I
concerns.
I guess I would like to see personally whether or not the States
working together can do that before EPA steps in and mandates a
specific process. So, there needs to be some flexibility here to allow
a process like that to work if it can.
MR. RAHER: Well, I think that is a very good recommendation.
As you can see, I tried to accommodate that a little bit in the third
line above that where we talk about existing regulatory or other
mechanisms to address it, and I think I got carried away down here.
Maybe the thing to do is just a process. Just take out specific
regu lato ry.
MS. MCINTIRE: Yes.
MR. RAHER: And then, again, it is not up to us to recommend
that. It is up to the Agency to be considering it, but we would like
some idea of what they are doing in that area.
Is that of concern to anybody? Chris?
MS. SHAVER: I am a little concerned by the word process. It
sounds like it is procedural as opposed to any substance in it which
may be what we are looking at.
Could we say program, a specific program?
MR. RAHER: Program?
MS. SHAVER: For the record, I am not sure that waiting for the
States to act for, you know, 10 or 20 years is in the cards.
MS. WEGMAN: But I do think, Chris, I mean, I don't know how
long it will take SAMI to really get going, but, certainly, we have to
give the States some options, and certainly regional approaches are
one way to deal with some of these things.
So, I worry a little bit about EPA developing and implementing
a program. I mean, it may be the States that develop and implement
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of pursuing two different paths, one of which might be a regulatory
path within EPA and others being pursued by States. But you can make
whatever recommendation you want.
MS. SHAVER: I am just trying to find a word that is somewhere
in between. That is all.
MS. MCINTIRE: Why not just put a period after concern?
MR. RAHER: Well, it is not just a question of pursuing. I mean,
I think the sense was that they want the Agency to come back and
indicate to the committee that they are developing and...they have at
least some kind of concept of how to develop and implement
something.
Go ahead, Andrea.
MS. BEAR FIELD: I know if I open my mouth, you think I am
going to object. You are right.
I have a question on what you mean by the second sentence?
When I talked with several people yesterday about this, I guess my
concern is I think there are other programs on the books getting
implemented now that are going to have a dramatic impact on emission
levels generally in the country, Title IV, Title III, Title I NOx.
I am wondering, is the purpose of this to look at all those
programs and say what is it that those existing programs are going to
do and are they going to have any impact whatsoever on Class I areas?
Or is it t come up with other mechanisms?
Maybe it is just a point of clarification.
MR. RAHER: Actually, it is a combination of that. I think there
was a sense of a number of people here that there are those other
programs. Many people will disagree or agree as to their potential
effectiveness or their current effectiveness. There may be other
mechanisms as well.
What was not evident to a number of the committee members here
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that we can feel comfortable that the existing source issue is being
addressed either under current 1990 Clean Air Act provisions that are
being implemented or other programs that are being developed. There
needs to be that sense of certainty before there can be a consensus
developing around New Source issues.
MS. BEAR FIELD: I guess I would just like to have the second
sentence read, Further, we want to see if there is a mechanism in place
or if there are mechanisms in place rather than stating there is not
one.
MR. RAHER: I guess that is probably not a bad recommendation.
No wonder I am having trouble here. I don't have my glasses on.
MR. BECKER: Andrea, let me ask you a question. I am trying to
think of some alternative language.
The mechanisms that you mentioned yesterday that are in place...
MS. BEAR FIELD: Or will be.
MR. BECKER: Or will be in place were not mechanisms specific
to protecting visibility in Class I areas or increments.
MS. BEAR FIELD: That is right, but I would sure hope that 8.9
million...
MR. BECKER: And all this says is that there is not a clear
mechanism, blah, blah, blah, to address a wide range of environmental
impacts in Class I areas. There are a lot of peripheral programs that
may or may not have a beneficial impact. This is saying there is not
a clear, direct mechanism to address this problem.
So, I don't think that is inconsistent with what you said yesterday.
MR. RAHER: I was trying not to. Mike?
MR. BARR: One of the things we have certainly done with all of
the existing source and Title II programs, for example, in California is
to take into account their effect on the Class I areas that ring
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I think the mechanism, at least where you have a fairly
sophisticated State that has worried about the problem for years, is
fairly clear, and I am struggling with that second sentence, too,
because we do anticipate and have relied upon in doing planning for
a number of key areas that are national parks and forests and other
areas where...
MR. RAHER: But at the same time, Mike, I think that the issue
being brought up...and you actually were the person, I think, who
voiced this a couple meetings ago...is if we look at New Source Review
on Class I areas, the fact of it is that that may be the drop in the
bucket, that the big issue is existing sources.
So, what people here were concerned about yesterday while you
were trapped in Des Moines was that there was a need to have, as we
move along on New Source Review and on some of these other issues
which individually may not solve the problem but are important to
sources around Class I areas, we need to have an indication from the
Agency where it is going on the existing source issue.
That is all this paragraph is meant to do, is to go to the Agency
and say the committee would like EPA to come back to us in September
and say that, you know, with hopefully some detail, here are the things
we are considering. We are going to keep you informed about this as
you go through your process so that when your final recommendations
come out, you will know what we are doing about existing sources.
It may be, as Andrea pointed out, we think they are being
addressed. It may be as Bill said that some of these things are
peripheral and we need to have some additional work. And it may be
that California is doing certain things, and that is not a question to
anybody.
MR. BARR: If the paragraph were your last six sentences, I think
it would be a lot clearer, and it would focus on the key issue which is
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programs that do affect Class I areas, and the first step is to gain a
clearer understanding of those mechanisms that do exist.
And perhaps there is a coordinating role that needs to be played.
I am not saying one way or the other, because we worked on it for a
long time to make sure it was clearer and that the mechanisms were
clear, but it is the understanding part that I think is the first step.
MR. RAHER: Don? Or Bill? Go ahead.
MR. BECKER: I was just going to say I am not sure I totally
agree with that conclusion. I think it is factual statement to say there
is not a clear mechanism in place to deal with this. I don't think it is
factual to summarize saying that there are all these other things in
place that will address the problems in Class I areas.
I don't care how we say it, but I don't think...I thought this said
it okay. I don't think turning it around as Mike was suggesting is the
correct way to say it.
We may differ on this, but I happen to think that the peripheral
items that Andrea mentioned yesterday don't address it as adequately
as they should. We may disagree on that, but the issue here is whether
Bill's peripheral issues are clear or not clear, and this says it is not
clear, and I agree with the way this is saying it.
MR. RAHER: Don?
MR. THEILER: I think you can't have your cake and eat it too
here. I mean, those programs are not designed ...they are not clear
mechanisms for dealing with problems in Class I areas. If they were,
we don't need this. We don't need this piece of paper, because it is
not a problem, it is going to be taken care of.
You have got to be able to say something like this, or we don't
need this piece of paper.
MR. RAHER: David?
MR. HAWKINS: I have another phrasing of the factual sentence
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is no operating program designed to abate the wide range of
environmental impacts, et cetera.
I think that is a factual statement, a correct factual statement.
MR. BARR: I think the wide part is...maybe we should start
there. I don't think that we have observed a wide range of effects in
California, and I think...
MS. HAWKINS: Oh, come on.
MR. BARR: ...that if we are going to talk about effects, we really
ought to look at the actual experience that we have had with the
performance of Title I, II, III, IV type programs over many years on
improving the air quality in those areas. You know, it gets into what
the basic facts are.
That is why I think it would be more productive to focus on the
understandings that we have, and I think it certainly would help this
group and many others to have the information about what other
programs can do for existing source impacts brought on the table.
MR. RAHER: Andrea?
MS. BEAR FIELD: I will withdraw my suggestion for
inflammatory language if David will withdraw his, and we will go with
the sentence as Pat drafted it.
MR. RAHER: I knew we could come to consensus.
MS. SHAVER: And here I had a compromise which I won't throw
out since Andrea withdrew hers.
In the last sentence on the process, how about a specific strategy
which suggests you are going to do something strategically rather than
just come up with a...
MR. RAHER: Is there any problem with taking out regulatory
process and inserting strategy? Vivian? It doesn't sound bureaucratic
enough?
MR. CARNEY: Did David withdraw his? Did you withdraw yours?
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MR. HAWKINS: If it means moving on to something else, sure.
MR. RAHER: Good, that is what I like. All right, we have
consensus among the committee that we will go ahead and transmit this
to EPA as a recommendation of the committee. Very good.
Let's get back to discussion on the agenda while you are all
thinking about what subcommittees you would like to participate in,
and I believe that we were at the point of moving to the...well, let's
ask what is it that the committee members want to do'?
Some of the issues we have already discussed on the third bullet,
providing more guidance 011 the using of top down BACT and LAER
processes. If there is a desire to have a further discussion of that, that
is fine. If not, we have really not touched very much on incorporating
or accommodating pollution prevention, and that certainly would be a
useful topic to discuss.
So, is there anybody who wants to raise the issue on providing
more guidance on top down BACT and LAER processes?
MR. ZBUR: Before we move back into...
MR. RAHER: Richard, sure.
MR. ZBUR: Before we move back into the agenda, I was
wondering whether or not we are going to talk about agenda items for
the upcoming meetings or whether that is something that you are going
to be addressing later on this afternoon, because I think there are
some issues at least my clients would like to see addressed by this
group, and I would like to just make sure there is time for a discussion
at some point. I don't know if this is the right time to raise that.
MR. RAHER: Lydia? I think the Agency has been giving some
thought as to in addition to taking up these issues with more detail
from the subgroups as to how they wanted to structure those. Lydia,
do you want to say something about that?
MS. WEGMAN: I think that...I mean, I am open to ideas, and I
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ideas for what we wanted to talk about. We were thinking we would
have reports out of the subgroups and probably spend one day of the
next meeting on that, and then we had thought about talking about
applicability the second day.
So, that is what we had in mind, but I am open to suggestions on
other topics.
MR. ZBUR: That is great. We are very interested in making sure
that NSR applicability issues are addressed early on in the process and,
in particular, the issues that arose out of the WEPCO decision in a
broader context. So, I just wanted to raise that and make sure that you
understood that there was an interest out there.
MS. WEGMAN: Yes. Well, we have a similar interest.
MR. RAHER: I assume, then, we would be seeing before the next
meeting an agenda similar to the one we had here where the Agency
tries to sketch out with some attachments those applicability issues?
MS. WEGMAN: Yes.
MR. RAHER: All right, back to the agenda that we have. Is there
a consensus we would like to start looking at the accommodation of
pollution prevention and how pollution prevention works in the area
of New Source Review?
I think it would be very helpful to the subgroup that is going to
be looking at this if we can get some input in terms of how States and
how individual participants see pollution prevention either used or
abused or not encouraged in the New Source Review program so that
those issues can be fleshed out a little bit.
Don?
MR. THEILER: I think this is an interesting area, and it has
some sticky aspects to it, and we have had to deal with it. One of the
things that we have done...and I just want to throw out a couple of
examples here on a couple of issues...where we have had to make BACT
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There have been instances where people have...and I think some
of the examples have been even put forward here...have come up with
improvements within the technology rather than putting the control
equipment at the end of the pipe, if you will, or at the end of the
smokestack.
The way we have tried to handle this...and we have gotten into
some fights with EPA about it...is you look at the BACT, the existing
situation, you look at the control technologies, and the control
technologies have an emission rate associated with them.
If a company comes in and says well, I have got a new way of
doing this, and I can meet this emission rate with a substitution, with
a pollution prevention technique, with an improvement in the way they
do business, and by doing this, I don't have to put on that piece of
control equipment, but I can meet the emission rate that the control
equipment will meet, we have said okay, what is really important here
is what comes out of the end of the stack, not how you are meeting that
particular emission rate.
We will consider that pollution prevention technology as best
available control technology. We will not, then, require you to put a
scrubber on or an electrostatic precipitator or what have you.
You know, there has been this idea that well, do that and put the
precipitator on as well, and that has been counterproductive, clearly,
and discouraging this. So, that is the way we have tried to do this. We
have looked at the rate that the pollution control equipment will meet,
and if they can come up with a better way of skinning the cat to meet
that rate, we would allow them that to go in without the technology
going on as well.
MR. RAHER: Have you run into questions questioning that
decision from either the region or...
MR. THEILER: Yes, we have had some donnybrooks on that
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was I would be willing to fight this one in Washington if you want to,
but we know the region is going to object. The company said well,
time is more important than the money on this one. We will agree to
put on the pollution control technology, put on the system.
I think that was an unfortunate decision on their part, but they
were faced with the uncertainty of fighting it out in Washington and
seeing how the assistant administrator would come down on it.
MR. RAHER: And what was the focus of the region's position as
to why that basic concept was not appropriate under the New Source
Review program?
MR. THEILER: Well, in that particular situation, they said the
technology was in place in some other places, and, therefore, the
technology rather than the emission rates should go into place, and we
never did get a chance to test the issue at that point.
MR. RAHER: Mike?
MR. BARR: This may be another area where the States, not just
California but others, are a bit ahead of EPA in working on it, and I
think is partly because of the separation of functions within EPA, but
there was a Federal Pollution Prevention Act of 1990 which is very
innovative. In fact, I think it was signed into law about the day after
the Clean Air Act Amendments.
What we have learned, certainly, in dealing with the States on it
is that it is a way for everybody to come to the table and be productive
and proactive and effective in solving a problem before it arises. I
think some of the biggest success stories so far are in attainment areas,
but I think it is an essential strategy for the nonattainment areas, and
it is being tried more and more in some of the more difficult
nonattainment areas.
The key, I think, is to make sure that it has a prominent place.
I am not sure it should be given deference, but it is almost an
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expanded broadly enough, perhaps BACT can include pollution
prevention.
The cases that are the most frustrating so far are those where
companies have proposed pollution prevention type approaches,
changes in the processes, raw materials, something ahead of the add-on
technology and had a great deal of difficulty getting a permit because
the pollution prevention approach had to be evaluated for BACT, and,
of course, it was an alternative to BACT. So, it doesn't fit to put
BACT on something ahead of the end of the pipe, and it has been very
frustrating to deal with that issue so far.
MR. RAHER: Mike, are you , when you say that it is being judged
by BACT, is it BACT similar to what Don was saying in the sense that
it is not the number, it is not the measurable emission that was driving
the system but, rather, the specific technology that had to be in place?
Or when you say BACT was driving it, is it some other alternative?
MR. BARR: I am not saying BACT was driving it. What I am
saying is that a pollution prevention project the whole purpose of
which was to prevent pollution was evaluated to see if BACT could be
put on top of it.
MR. RAHER: Okay, so you...
MR. HAWKINS: Could you describe an example to help crystalize
the concern?
MR. BARR: The example that I have in mind is a chemical plant
and the one that attracted the most attention. It was a change in the
process of producing the chemical. The plant already had RACT on it
which, in California at this particular plant, was equivalent to BACT
really.
So, the very act of changing the process to make it less polluting
which, incidently, would have had the effect of reducing the pollution
coming out of the BACT control technology, triggered, then, another
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technology to be removed and replaced with another set of pollution
control technology.
MR. HAWKINS: It is an applicability issue, basically?
MR. BARR: Well, since, you know, BACT applies to everything
you do at a plant or could, I mean, we don't argue too much about
applicability, but it did trigger a BACT review of the process change
which would have reduced emissions using the existing BACT
technology, required itself a BACT review which would have required
the replacement of the BACT technology and made the pollution
prevention project totally infeasible.
MR. HAWKINS: It just seems to me that the aspect of this that
you are questioning is whether there should have been any NSR
applicability to this activity rather than once you have got a project
where everyone agrees there should be NSR applicability, can the
BACT process be conducted in a way that leaves the door open for
pollution prevention methods of achieving whatever standard of
performance is determined to be a BACT performance standard.
MR. BARR: I think both of those issues are still on the table,
David, and I think it is very important to conceive of pollution
prevention as something that raises applicability issues, potentially
BACT issues, and issues about what are we trying to do with our New
Source Review processes.
And I think that it is important that all the experiences that
people are having, particularly at the State level, be somehow gathered
up and made available to at least the EPA, but as I said earlier, I think
there has been a problem of the functions being in different offices
within EPA. I am not sure how much communication there is between
this office, for example, and the Office of Pollution Prevention.
MS. WEGMAN: Actually, we have a fair amount of
communication with that office and have been looking at pollution
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MR. BARR: I think that is very helpful, and I would encourage
that as strongly as I possibly could.
MS. WEGMAN: And we are looking at increasing ways to fold it
into New Source Review and the operating permits program.
MR. BARR: Yes, the other part of it is raised by one of the other
questions. The innovative control waivers already play a part in
pollution prevention and so far very limited, and it seems to be too
inflexible a device, but, again, maybe it is another way of approaching
it along with applicability, BACT review, how can it be fit into the
system, and I think BACT review is part of it.
MR. RAHER: Mike, before we move on, the innovative
technology issue is one that I think the subgroup needs to at least be
aware of, and, David, is there somebody from the Agency that. ..aga in,
to make sure we all have a general understanding of how that program
works?
You know, Mike says it is inflexible. What are the parameters of
that program that seem to be out there that more people don't take
advantage of it?
MR. SOLOMON: Do you want to spend a minute talking about it?
MR. RAHER: It would be helpful, I think.
MR. SOLOMON: The PSD regulations do have what is called an
innovative technology waiver. Essentially, what it allows an applicant
to do...and I think we have the regulations here...is to allow for the use
of a technology that would otherwise achieve the same level of
reduction as BACT except at a lower cost or a greater level of
reduction at approximately the same cost.
What it is is it allows for, I think it is, up to six years. There are
two phasing periods for the source to demonstrate compliance with the
ultimate BACT limitation, and if compliance cannot be met with that
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MR. BARR: I have one question. How does that relate to the
innovative technology in 182(e), the L.A. innovative technology? Do
you view that as a broader provision than the existing, than the PSD
provision?
MR. TYNDALL: Basically, our regulations have not been
developed on the 182(e). We have not integrated them at this time,
but it is something that we are addressing in the Part D rulemaking
that is being undertaken right now.
MR. RAHER: Mike, when you say inflexibility, are you saying
that the six-year time period and falling back to the BACT limits is
inflexible because banks won't finance it, or is there another provision,
another aspect of it?
MR. BARR: It is that as well as what qualifies as innovative, and
I am not sure...
MR. RAHER: So, both ways, the pressures...
MR. BARR: Also, it is the use of the word technology. It is more
the focus on the end of the pipe still, although I wouldn't...I don't
dismiss it as a mechanism that could help in some cases, but remember
we are looking at processes and raw materials. We are looking
upstream from the pollution control equipment.
MR. RAHER: So, an issue may be whether it is possible, as the
Agency looks at pollution prevention and trying to incorporate it into
each program, that it isn't possible to incorporate it into this
innovative waiver program.
MR. BARR: Right.
MR. BUMPERS: Can I just follow up on that? I am curious. I
have a client who is looking at something similar, and what Don said
and what Mike said...
MR. RAHER: Well, Mike will give you some free legal advice
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MR. BUMPERS: That is what we are looking for. But, I mean,
this really does get to the applicability issue, because, as you point
out, you can go in and change your processes and implement a
pollution prevention strategy that gets your emission rate very low, but
if you actually look at the applicability issue, it can still trigger BACT
under the current methodology, and the current methodology would
then look at can you impose the technology you would otherwise have
used in the first place.
Frankly, one of my clients was sitting there looking at whether
they were going to do a pollution prevention project as an alternative,
and what they were thinking of doing was undertaking sort of a
triggering project so they could offer up the pollution prevention
project as the alternative to BACT so that they wouldn't get in this
catch 22.
That is just sort of an anecdote, but is there a way to get around
it, Mike?
MR. HAWKINS: This is the ask Mike session.
MR. BARR: I am not here.
MR. RAHER: Ray?
MR. MENEBROKER: In terms of the pollution prevention topic,
I will preface this by saying there is not uniform agreement within
California on this, but many of the districts are looking at it, and that
is sort of a three-tiered approach.
Number one is to look at the basic equipment when you are doing
a BACT determination to determine if, in fact, you have the lowest
emitting basic equipment. Some districts, I think, give an example
where their legal counsel says they can't do it, so they don't do it.
Other districts do it.
Some districts, in essence, will say that rather than use an IC
engine, use an electric motor. So, if a piece of equipment will do the
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I know that there has been some discussion on it. We are not at
all looking at someone go to a pulp versus a recycled paper, not that
type of a thing at all. This is more reasonable than that.
After that, then you look at the process itself. You know, there
are more and more new processes that pollute less. I think that is the
second step.
I think the last thing you want to look at is add-on controls. I
mean, if you can prevent the emissions to begin with, then, you know,
the add-on controls is the last thing you look at.
In terms of the example that Solar gave, I think that is a very
good example. Why should you have to permit a rich-burn engine at a
higher level when you know there is a lower level that can be permitted
just because of the BACT/LAER determination or the BACT
determination.
But you could take that one step further which I know Solar
wouldn't like, and that is if in that application, an electric motor
would do the same thing, then, you know, you would go with the
electric motor. I know they don't like that.
So, I mean, you do get into a lot of issues here, but I think that
in terms of looking at BACT, I think this is something that should be
looked at.
Again, I think it is a good thing, too, is that if you do make the
process change...and there is not agreement on this, either...if you can
do as well as what BACT is now with a process change, then, you know,
why not allow that instead of putting add-on controls? It does promote
pollution prevention. It does promote technology, and I think that is
something that needs to be discussed.
MR. RAHER: We seem to be identifying two separate areas here,
one where a pollution control process change doesn't trigger BACT at
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program is currently structured, it triggers it and then appears to he
pushing towards a technology mandate in the BACT determination.
It would appear that whatever group looks at this needs to get a
little more information from, certainly, the State representatives and
the corporate representatives on, you know, which is more prevalent
out there and in that one in which it trips BACT, because it isn't just
an applicability determination. There will be times when even if we
agree that there is some way to change applicability determinations to
get rid of that, there are going to be some times when it trips BACT
anyway, and the question is how is that process and procedure going to
apply.
MR. MENEBROKER: Yes, and in terms of the innovative
technology, we have had that in some of the rules, and it sort of has a
bad name, because while not all of them, a lot of proposals, you take
a look at them, and they don't pass the straight face test. They are
really not innovative technology; they are just a way of getting out of
some other requirement. I think when industry does that, they do give
it a bad name, and I think that any attempt to use an innovative
technology should be that.
MR. BUMPERS: Just to support, Ray, we think that beneficial
electrification ought to be BACT.
MR. RAHER: Ron?
MR. VAN MERSBERGEN: In our limited experience in our
region...it might be only to one or two States with respect to pollution
prevention...we have a concern that the level of confidence you may
have in the innovative technology that is introduced as pollution
prevention and existing control technology that we live at the same
level of reliability.
As many of us well know, you may put an emission rate on and call
that BACT, but there is a comfort zone, sometimes fairly substantial
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actually goes out in the atmosphere, and I don't want to lose track of
that.
With respect to pollution prevention versus BACT, I am not sure
that we want to equate the two immediately. I think back in the old
brick making days of the beehive kilns or the more modern way, or in
the steel making industry where we have the open hearths, maybe the
BOF and BOFP shops are less polluting, but that doesn't mean that we
might wish not to put BACT on the more modern process.
So, I don't want to lose that in our substituting pollution
prevention for BACT. We want to keep that going. BACT moves
along. Okay?
I just wanted to share those two thoughts.
MR. RAHER: Okay, good point. Gregg?
MR. WORLEY: I guess the first point I would make is that the
statutory definition of best available control technology goes on to
read that BACT is, after you go through the three Es, what is
determined is achievable for such facility through application of
production processes and available methods, systems and techniques,
including fuel cleaning, clean fuels, or treatment, or innovative fuel
combustion techniques for control of each such pollutant.
To me, that essentially says that you do look at pollution
prevention, that it has been in the reg or in the statute the whole time.
I can think of a number of examples within our region where
pollution prevention is routinely taken into account in BACT analysis.
The most obvious one is the low NOx burners on combustion turbines
where, currently, low NOx burners for some turbines are getting in the
range of 9 parts per million which is roughly equivalent to what a
standard combustion turbine, what the SCR would meet. So, which one
is BACT?
Our position within the region has been that either one of them
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Another example is a recent trend with kraft pulp mills to use
anthraquinone as a pulping additive. It lowers the overall sulfur
balance within the plant, thereby reducing the TRS and getting EPA
away from this question of when you control TRS through incineration
and it creates S02, are you now subject to BACT for SO,.
So, it is solving one of our problems through a pollution
prevention process.
Other examples that are common are the going to the use of water
borne inks in the printing process, water borne coatings through
automobile manufacturers, and in some cases, you have combinations
of using water borne solvents or water borne paints with add-on
controls, but in some cases, that is not feasible.
So, I would just like to point out that the experience in some
parts of the country is a little different, I think, than what is going on
in California, what you perceive as maybe roadblocks to pollution
prevention projects, because we are current considering those when we
do a BACT analysis.
In fact, I would say that it is required by the statute under the
definition of BACT, although when the statute was made, I don't think
they used the buzz word of pollution prevention.
MR. RAHER: Gregg, let me just...point of clarification here. Go
back to your water borne ink or water borne coating situation. If that
source came in and said this is a pollution prevention program. We
are going to change our coating, and that is we are able to meet our
current permit or, in fact, we may even be lower than our current
permit limit.
Is there going to be a BACT review? And, by the way, we want
to shut off the scrubber or incinerator that is on there. Is there a
BACT review or a requirement that you can't shut off or you still must
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MR. WORLEY: I think in that situation, we get kicked into the
other arena that was brought up earlier about applicability and
whether or not has the particular process been operating at a low rate
with the control and will they be operating in an increased rate or, in
the arena where we are now the way the regulations are now, we would
have to look at their potential in the future.
MR. RAHER: Well, let's assume that there is applicability.
Again, if there is not applicability, if we get to that issue, maybe that
is a simple way to solve it, but assume that there is applicability.
You raised a good point. I mean, what if the source is going to
increase production and, in fact, is still going to meet its limits? I
guess that would...now we don't have any...how do you look at the use
of the pollution prevention in terms of the add-on controls?
MR. WORLEY: Assuming that there is or the applicability test
has been gone through, there is a BACT analysis being considered, I
think the use of changing the process would be one of the controls
within the hierarchy.
Obviously, within the top down process, you are going to have to
consider using the top of the line which would be the add-on controls
in addition to the pollution prevention, but then you get back into the
arena of making the judgment, giving the weighting to the particular
values as to what for this particular source is BACT.
MR. RAHER: Okay, so you are saying that that top down system
still could drive this decision and that whatever group looks at this,
that is an issue they have got to look at.
MR. WORLEY: Right.
MR. RAHER: Don?
MR. THEILER: I think Chris was waiting patiently here.
MR. RAHER: I am sorry. Chris? I didn't see it up.
MS. SHAVER: I am going to be a little rowdy. I think we are
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pollution prevention for things that don't prevent pollution. They
reduce pollution. As there become more and more of us and more and
more things we want, we do need to be c o n c e r n e d ... t h i s is sort of Ron's
point...that by reducing the amount of pollution by some process, we
are not eliminating it. We still have pollution, and we need to control
it however we can.
So, I guess I am very concerned as to how these projects are
defined. I think Don's suggestion of some emission rate approach is
appealing, yet, at the same time, I guess I am thinking of an incentive
system that moves us towards the non-pol luting, totally non-polluting
future which we are going to need to survive, in which case the idea of
combining pollution prevention and control technology as a
requirement until we find a non-polluting way strikes me as not being
a bad thing to do, at least in cases where, you know, there is any vision
of eliminating pollution for that particular type of industry.
I will, just for the fun of it and a change of pace, pick on the
utility industry and suggest that there are renewable energy resources
that are totally clean, and as you talk, the man from Solar Turbines
about his turbines and how little NOx they come, I am thinking why are
you not doing something with solar. Use the first part. And I know
you are, and that is fine, but there is that option, and we always think
in terms of controlling and reducing or whatever instead of switching
our mind set to something different.
MR. RAHER: Praveen?
MR. AMAR: The question I had was what Dave had mentioned
earlier, the fuel, and the extent fuel affects emissions. Ray had
mentioned the IC engine versus the electric motor engine, an three-tier
approach, basic equipment.
Do you take into account the fuel use itself as a pollution
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MR. RAHER: Yes, many districts will make a determination that
gas is BACT, not diesel or whatever, fuel oil.
MR. AMAR: I know California has done more than others, saying
natural gas is the fuel. We have quite a bit of difficulty in this part of
the country saying, you know, you are making selections of fuel. I
wonder with a pollution prevention program, is there an option to
promote a certain fuel at the expense of the other?
MR. RAHER: The California delegation is conferring over there.
MR. BUMPERS: I might point out that you run into some
Constitutional problems sometimes when you start making
determinations that are not wholly based on health and safety issues,
when you start precluding the use of certain commodities within your
jurisdiction.
I am not saying necessarily that is going to happen, but we have
seen situations where States passed laws requiring the use of
indigenous fuels. For example, Oklahoma passed a law that required
you to use indigenous oil or natural gas, and it was ruled to be
unconstitutional.
MR. AMAR: Has California had that problem, then, with natural
gas being an unconstitutional fuel?
MR. HAWKINS: Bill, you agree it is not a problem if it is
performance based?
MR. BUMPERS: No, I think you get into some really complex
constitutional stuff that I, fortunately, have avoided, but you do have
difficulties in specifying fuels if you say my State can't burn coal,
period, and you don't have it very well founded on local health and
safety issues. You really run a big chance of having that prohibition
struck down.
MR. AMAR: So, the pollution prevention program, the way I
understand it, does it stay out of that debate completely, the fuel
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program encourage the use of one fuel or does it stay totally silent on
it?
MR. HAWKINS: What program?
MR. AMAR: Any programs in general.
MR. RAHER: Good question. I don't think EPA has a position
on that.
Yes, Barbara'.'
MS. BANKOFF: I do want to agree with Chris and with Gregg.
I think the term pollution prevention has had some unfortunate
baggage with it. I don't think it conveys what we are trying to do, and,
you know, it picks up some stuff from the LPTS program and 33/50
which has had problems.
What I would urge is that we ares looking at performance in the
end.
I had a question to Dave, actually. The innovative technology
rule, I don't know where it is right now, but is there any reason why it
couldn't be an innovative process rule? It sounds very similar to your
earlier reduction credit program.
MR. SOLOMON: I don't think there is anything in the existing
waiver that would preclude the use of an innovative process.
MS. BANKOFF: You know, there is a very similar concept with
the ERC program under 112 which is to give you some time by which
to establish this, at which point you go back to, if you can't meet the
standard, you go back to whatever MACT is.
MR. SOLOMON: But, again, the applicant proposes to meet
BACT, not necessarily through a technology. We do recognize a
method or a work practice.
MS. BANKOFF: So, you are defining technology in a very broad
sense.
MR. SOLOMON: Right. What the innovative technology waiver
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achieve that limit, it allows for flexibility and a phase-in period to
demonstrate what the ultimate compliance will be.
MR. BANKOFF: Okay, I guess it is just the title that is a little
misleading.
MR. SOLOMON: Right.
MS. BANKOFF: And maybe...it certainly sounds like more of a
reform if you change your title.
MR. SOLOMON: We can call it innovative BACT waiver, if you
like.
MS. BANKOFF: The concept is what really matters, and that is
he lpfu I.
MR. RAHER: Don?
MR. THEILER: Thank you. I am never going to defer my chance
to speak again.
MR. RAHER: We just wanted to teach you a lesson there.
MR. THEILER: I still want to go back to the point I made early
on here is that if you foe us on the rate, a lot ofthese questions become
less onerous. When we are talking about these things, and, again, I
was concerned about what was said by Gregg where somebody came in
with low solvent paints, and then they say well, okay, now you have got
low solvent paints. We have to evaluate the incinerator as well.
My understanding of best available control technology is that it
is best available control technology as achieved in practice somewhere
in the United States. Somebody is actually doing it.
Now, if somebody has got low solvent paints and an incinerator
on and there is an emission rate associated with that, sure, then it is
a legitimate candidate for BACT, but if this is an innovative
technology and nobody has low solvent paints and an incinerator on at
the same time, it is not then, as far as I am concerned, best available
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Look at the emission rate that is achieved by that category and
whoever is doing the best in that category. Presumably, that is
somebody using an incinerator, and if they can meet it without using
the incinerator but by using low solvent technology, they shouldn't
have to then consider the application of the incinerator on top of that.
You look at the rate, and if they can beat that rate with a new
technology, why not?
I think there is a fairly simple fix to this issue.
MR. VAN MERSBERGEN: How do you get the rate, Don?
MR. THEILER: The rate is already established in the existing
BACT systems for permitting systems and they are actually achieving
in practice, not necessarily what has been permitted, but what they are
achieving in practice.
MR. RAHER: David?
MR. HAWKINS: Well, I certainly understand the simplicity of the
approach that Don is advocating. I do think there are some difficulties
with it.
The sort of binary choice that is involved doesn't give you as
much flexibility to consider the use of combinations of pollution
preventing methods in cases where they are reasonable to be applied,
and it seems to me that a better approach would be to examine whether
the still lower emission rate that might be achievable through the use
of combinations of methods up to now not actually combined in
practice but clearly technically feasible and economically feasible, why
not do that?
MR. RAHER: David, are you making a distinction between BACT
and LAER, or does your proposition here apply to both?
MR. HAWKINS: I don't read BACT as limited the way I
understood Don to be saying that you actually have to show that
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Statutory language talks about achievable, not demonstrated as
being achieved, and if a deter m in at ion can be made that a combination
of measures can further reduce pollution and those measures are
achievable, I think that the way I would approach the issue would be
to evaluate whether the combination was appropriate to require and
determine was achievable, not to say because no one has done the
combination, it is off the table in terms of consideration. That is all.
MR. RAHER: Don?
MR. THEILER: I would like to respond to that, because I think
that goes to the classic example that always comes up in some of these
discussions. As far as I am concerned, that is very similar to saying
well, if one electrostatic precipitator is good, two is better and three
is even better.
I mean, it may be achievable. You can do it. Nobody is doing it,
but it is certainly feasible. It is certainly something that could be
done, but this is not what we are doing in practice.
I think we have got to recognize some of these things and begin
to come to grips with them. I think it is a similar argument. Why
don't we do that if that is what the law says and you can do it?
MR. RAHER: David?
MR. HAWKINS: Ifl could just follow on, I think it is because we
ask ourselves the question either implicitly or explicitly whether that
is a reasonable proposition, and we conclude that it isn't a reasonable
proposition to stack a precipitator behind a precipitator or to stack a
baghouse behind a baghouse.
It isn't that the inquiry is ruled out of bounds. It is that, when
examined, even cursorily, it is concluded that it isn't a reasonable
result and, therefore, it isn't required or insisted on.
MR. RAHER: Mike?
MR. BARR: I think we are getting, you know, maybe close to the
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subcommittee, but I do think that the debate i 11 u st ra t es ...I mean, this
recreates a lot of what we have heard so far in practice on these
various control technology issues.
I think it gets to the heart of how much the agencies can
realistically identify and require control technologies, combinations of
control technologies, generations of different control technologies, and
now we are faced with the prospect as we see pollution prevention
growing, because it makes sense economically and environmentally, of
the agencies getting involved in specifying production processes, raw
materials, fuels, combinations, generations of all those, together with
pollution control technologies.
If the current system is overloaded because the agencies have
trouble even posting a bulletin board of what decisions they have
made, this new era of command and control type pollution prevention
would be completely beyond the ability of agencies to do it. That is
why I think at least the manufacturers' view of pollution prevention is
as a way of reducing the problems that we are having with the
BACT/LAER type command and control system and serving as a
companion and perhaps an alternative to that system, if suitable
performance tests can be arranged and guaranteed.
MR. HAWKINS: Could I ask, Mike, how you would define
pollution prevention?
MR. BARR: Broadly. As broadly as the human mind can
conceive, because I think what we are talking about is approaches
towards making things, at least from a manufacturer's perspective, or
making energy or doing things which overall up and down the entire
system from raw material to ultimate product use and return and
disposal minimizes the pollution and perhaps ultimately eliminates it
for some industries.
MR. HAWKINS: And the resource use as well.
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MR. THEILER: I would like to make a final observation here.
I think David put his finger on the real issue which is the two views
that you can take of best available control technology. One is
achieved; the other one is achievable.
If what we are talking about is achievable rather than achieved,
then you have got a different set of criteria. We have, at least in
Wisconsin, have always dealt with it in terms of this best available
control technology is a process of identifying what has been achieved
in practice and making sure that that best system that has been
achieved in practice, if at all feasible,gets implemented in Wisconsin.
We have not looked at is it possible and then is it economic.
MR. RAHER: And I think that that does frame the issue that the
subgroup really needs to be honing in on when it looks at this.
Barbara? That was just a leftover? All right. Well, since there
are no more cards up, I recommend a 15-minute break, and then we
come back, and remember you all promised to be ready to sign up for
a subgroup here.
(WHEREUPON, a brief recess was taken.)
MR. RAHER: I think the first order of business is to get back,
since there are some people who have some flights, and I have gotten
some indication of various subgroups that people would like to serve
on. Bill, have the States given any further consideration so we might
pen in some names on these, or do you still want to take some time?
MR. BECKER: Well, we can give you some preliminary thoughts.
There are a couple people who aren't here that we want to check with.
MR. RAHER: Okay.
MR. BECKER: But I can give you...
MR. RAHER: Well, I will tell you, just after it is over, the ones
that you think you have, if you can, give over to Alice. She is over on
the corner of the desk here. That would help.
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MR. RAHER: Why don't we go back, Bill, if we can put up on the
screen the committees again just so everybody has it, on the Class I
issues, and let's assume...let's put aside the States and the Federal
participants for a minute and see if we can identify some people that
would like to be involved in this.
What about on procedures and coordination, the one that Leslie
will be chairing? We already have some people that have volunteered
to be on that. Is there anybody else from any of the other groups that
wants to participate in that?
MR. BUMPERS: Can we identify who the volunteers are?
MR. RAHER: Excuse me?
MR. BUMPERS: Can you identify who the existing volunteers are
for that subgroup? It might help us decide.
MR. RAHER: Bill, are there some of the committee members you
would just as soon not serve with? Is that what you are saying?
MR. BUMPERS: No, there are some of the who I really like a lot
and would like to get next to.
MR. RAHER: Careful. Watch Becker there.
Actually, do we have...
MR. LAMASON: Other than the State and local people yet to be
designated and EPA and FLM folks to be designated, the only person
we have so far is Leslie herself. Leslie is our only volunteer other
than these to be named people we have talked about.
MS. SHAVER: Dave Hawkins said he would do it for the
environmental community.
MR. RAHER: Okay.
MS. SHAVER: He is doing other work right now, so you can see
how excited he is about that.
MR. RAHER: That is right. Well, we appreciate that.
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MR. RAHER: What about determination of adverse impacts and
the increment issues? David?
MR. CARR: Yes.
MR. RAHER: Okay. Andrea, we have got.
MR. BARR: And I volunteered to relinquish my spot for Andrea.
MR. RAHER: Oh, very good.
MR. LAMASON: So, that will be Rich Fischer, Andrea Bear
Field, Vivian Mclntire, and David Carr.
MR. RAHER: Plus the others.
MR. LAMASON: Plus the other to be named State and local and
EPA folks.
MR. RAHER: Mitigation of source impacts? Chris? And,
obviously the State and Federal people. Anyone else?
MR. LAMASON: That will be Mark Carney and Chris Shaver.
MR. BECKER: We can tell you who we are going to have now if
you want.
MR. LAMASON: Oh, sure, that would be good.
MR. RAHER: Yes, the sooner the better.
MR. BECKER: For that one, we are going to have Pam and
possibly myself, Pam Faggert.
MR. LAMASON: So, as I said, it is Mark Carney, Chris Shaver,
Pam Faggert, and possibly Bill Becker plus the EPA and FLM folks.
MR. RAHER: Right. What about the determination of adverse
impacts, Bill? Do you have somebody on that one?
MR. BECKER: For the first two, we are going to try to include
Oregon and Washington, but I have to talk to them and see.
MR. RAHER: Okay, we will just wait on that one.
All right, on the others, if we can flash up the one with respect
to BACT and LAER, let's start with the BACT/LAER Clearinghouse
and presumptive criteria issue. Again, besides the regular participants
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140
MR. LAMASON: We have John Paul and Ray for that one.
MR. RAHER: Okay.
MR. CARNEY: Pat, did you twist somebody's arm to lead those?
MR. RAHER: Not yet. We will wait till we see this little group,
and then we will.
Is there anyone else on this group? Yes, David?
MR. CARR: I am willing to put my name down and will be
seeking a substitute.
MR. RAHER: Okay.
MR. CARR: But we do want to have a representative on that.
MR. RAHER: David?
MR. MCAVOY: Fine.
MR. RAHER: Is that it?
MR. LAMASON: Shall I read them off?
MR. RAHER: Yes.
MR. LAMASON: That would be Vivian Mclntire, then, Patrick
Raher, whoever he is, John Paul, Ray Menebroker, the person to be
designated by David Carr, and David McAvoy plus the EPA and FLM
folks.
MR. RAHER: And I will go ahead and continue my own role
there, and I will take charge of trying to organize that group.
MR. LAMASON: Okay, so Pat will be the chair.
MR. RAHER: Right. I don't know why I just did that after all I
am doing.
MS. BANKOFF: I was wondering.
MR. RAHER: That is all right. We may have to rethink this, my
family.
Number 2, the BACT/LAER criteria issue. On that committee,
who else? Bill?
MR. BECKER: Don Theiler is going to...
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141
MR. BECKER: Don Theiler.
MS. BANKOFF: Have you given any thought to possibly
combining 2 and 3? Do we agree that some of those could be
considered BACT instead of the applicability issue?
MR. RAHER: I will tell you, that probably is a good idea and can
be brought in. The real question we have here is you may turn out to
get a committee that is almost as big as the one we have here, and the
whole design of this is to try to bring more focus and attention to it.
MS. BANKOFF: In terms of numbers of people?
MR. RAHER: Right.
MS. BANKOFF: Do you have any volunteers for that one?
MR. RAHER: Well...
MS. BANKOFF: I was going to volunteer for 3, but I thought it
should be part of 2, actually. Either way.
MR. RAHER: If there is a serious suggestion that they be put
together, but I think there is certainly enough work on both of those
to generate the work for people.
All right, on 2, Bill, we had the people that you identified. Don?
Bill Bumpers? Anyone else?
MS. BEAR FIELD: I will coordinate and not get in the way, but
I do want to sit in on that one.
MS. RITTS: I will.
MR. RAHER: Leslie? Fine?
MR. THEILER: I want to find out if Bill Bumpers wants to get
next to me now, because I want to reconsider my...
MR. LAMASON: And David Hawkins.
MR. RAHER: Dave Hawkins? All right.
MR. LAMASON: The nominees are Andrea Bear Field, Chuck
Knauss whose name has been put forward in his absence, Don Theiler,
Bill Bumpers, David Hawkins, and Leslie Ritts. The winner is...
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142
MR. LAMAS ON: Andrea Bear Field, Chuck Knauss, Don Theiler,
Bill Bumpers, David Hawkins, and Leslie Ritts.
MR. RAHER: Bill, would you act as c h a i r o f t h a t fo r coordinating
purposes?
MR. LAMAS ON: And Mr. Bumpers will be the chair.
MR. RAHER: Are there any others on that? All right, and our
last one which is the innovative control and pollution prevention
program. Barbara? Chris Shaver, Jim Jewett, Rich.
MR. LAMASON: I can't write this fast.
MR. RAHER: I have got to slow down. Mike Barr.
MR. BECKER: And we are going to check with New Jersey, Tom
M i ca i.
MR. RAHER: Okay. Barbara, could we ask you to sort of move
that along? Now we will combine them and you can take them, that is
right. Anyone else? Why don't you read that back?
MR. LAMASON: I have Jim Jewett, Dave Aldorfer nominated in
his absence ...you better come to meetings or you get assigned work if
you don't come ...Chris Shaver, Barbara Bankoff who will be the chair,
Rich Fisher, Michael Barr...
MR. RAHER: No, no, Rich Zbur.
MR. LAMASON: Rich Zbur, I am sorry. I heard Rich. That is
why we read things back. Mr. Zbur, Michael Barr, and possibly Tom
Micai. Anybody else?
MR. RAHER: Good. What we would propose then is that we
will...what I would propose is that the committee ask the EPA to
prepare these lists, send them out to everybody with the telephone
numbers on it, those people that have been designated to nominally act
to try to coordinate these efforts, and we will also try to put together
a very short couple of paragraphs that again lays out what we talked
about earlier which is sort of the goals and the timing that we are
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143
committees should try to convene as early as possible to begin
sketching out their areas and any assistance that they need from the
Agency and so forth.
MS. WEGMAN: I just want to say, Barbara, if you think there is
usefulness to working with the other committee, you could conceivably
try to coordinate with that committee, too.
MS. RITTS: Can I recommend Bill Pedersen for the AQRV one?
He is not here, and I volunteer you for that. I am sure he will call you
and ask you.
MR. LAMASON: I have two last minute additions here, so wait
a minute. Bill Pedersen for the...
MS. RITTS: AQRV one .
MR. LAMASON: AQRVs? Okay. That is actually adverse
impacts.
MS. RITTS: Now, nobody tell him I did that.
MR. LAMASON: And then Bill Becker?
MS. RITTS: It is on the record. Right? It is on the transcript.
MR. BECKER: Praveen.
MR. LAMASON: For?
MR. BECKER: For the criteria.
MR. LAMASON: For also the same thing?
MR. BECKER: Yes.
MR. LAMASON: Just so you know, I think in your information
packet everybody's phone number and fax number you should already
have, because they are on the invitee list, the corrected one, but we
will go ahead and put together the lists of the subcommittees and get
them out to the chairs.
MR. RAHER: Right. Pat?
MS. WEGMAN: And what we are also going to do is put
together ...excu se me just one second, Don...a list of issues that reflect
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144
of the discussion we have had in the past day especially to try to focus
EPA's concerns for the subgroups to address, and that will be going out
next week as well.
MS. BANKOFF: Will you include the EPA people for the various
committees?
MS. WEGMAN: Yes, when we send the lists out, we will include
the EPA folks on it.
MR. RAHER: Don?
MR. THEILER: One thing that doesn't clearly fall in any of these
areas and I think it needs to be assigned, I think it would be good if
a subcommittee or subgroup or whatever these things are would
address it is pre- and post-monitoring, application monitoring. We
really haven't talked about this monitoring.
MR. RAHER: Actually, that does...you are talking about for the
Class I?
MR. THEILER: Not for mitigation necessarily. The whole issue
of PSD monitoring.
MR. RAHER: Right, and we were tentatively have put that into
Mark Carney's bailiwick. We agree with you that it is something that
needs...
MR. THEILER: As it relates to Class I issues.
MR. RAHER: Right.
MR. THEILER: It is a broader issue. I mean, even for Class II.
MR. LAMASON: Our plan was to bring that up at another
meeting, the broader issue. To the extent that the Class I group deals
with it, that is great, and maybe they can go a long way to coming up
with some solutions, but...
MR. THEILER: But I think that, especially pre-application
monitoring, even for Class II, is an issue that is ripe for correction.
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145
MS. WEGMAN: Yes, we have actually had a group at the Agency
that has been looking at some options on that, and we can try to fit it
into our agenda in September.
MS. BEAR FIELD: Lydia, one place you might want to put it is
BACT/LAER Clearinghouse, because we talked before about having in
that document or whatever it is information not only on what the
permit issuing authority told the source to do but on what the source
actually did which might be deter mined...part of that might be
determined by post-construction monitoring.
MS. WEGMAN: Yes, I don't have any objection to adding it in
there, if that is all right with you, Pat.
MR. RAHER: Sure.
MS. WEGMAN: We will add that as part of the charge for that
subgroup.
MR. RAHER: There has been a suggestion ...right now, the
meeting is scheduled tentatively for the 28th and 29th. During that
week, toward the end of the week, is also the SONREEL fall meeting
down in Asheville, North Carolina, and there has been some discussion
of moving it, instead of Tuesday and Wednesday to Monday and
Tuesday. Is there a preference of the subcommittee members? Don?
MR. THEILER: I would certainly prefer that. I can make both
days if we move it that way.
MR. RAHER: Is there a concern, Monday and Tuesday, the 27th
and 28th?
MS. SHAVER: And when is SONREEL, 29th and...
MR. RAHER: The SONREEL begins on the 30th, I believe.
MS. THEILER: They have some things on the 28th but not a
whole bunch. It is mostly Thursday, Friday, Saturday.
MR. BUMPERS: On the 28th or the 29th?
MR. RAHER: The 29th is a Wednesday. I think they start on
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146
MS. WEGMAN: They have some things on Wednesday but not
very many, but that would allow people to get there.
MR. RAHER: Then maybe that would accommodate it. If there
is no objection, we will move that to the 27th and 28th of September,
Monday and Tuesday.
MS. SHAVER: Where?
MR. RAHER: Here.
MR. BUMPERS: One question. Can we...well, never mind. I was
going to say start a little later on Monday.
MR. RAHER: Well, that is not a bad idea. There are a number
of people who would be able to get down here for an early meeting if
it didn't start until about 9:30, and we may go a little later on the first
day.
MR. BUMPERS: Right, I would recommend that.
MR. RAHER: And then pick it up. Is that acceptable to
everyone?
MR. THEILER: As long as we meet at 9:30. If we start meeting
at noon or something...
MR. RAHER: Right, exactly, then we have wasted a day. All
right, we will make it so that we do begin at 9:30 on the 27th.
MR. LAMASON: And we will tentatively plan to meet here, but
it is pending the confirmation of the logistics.
MR. RAHER: Are there any other issues that the committee
wants to bring up from the standpoint of just procedure and the
subgroups? If not, we certainly can continue to discuss any of the
BACT or LAER issues that you wish, although I sort of get the feeling
that a lot of people here are just about done discussing for a couple of
days.
Another issue that we can sort of short-circuit is the one
concerning allowable pre-construction activities, and so that we don't
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147
Solomon to sort of help us along the next time with coming up with a
short, because I think this is a small issue, but a number of people
were bringing it up, the whole question of what pre-construction
activities are permissible and how this affects and is there a way to
improve New Source Review timing on this.
This runs the gamut from now not being able to do anything
unless maybe it is freezing weather on the way and you have to do
something and your permit is about ready to be issued all the way to
parties that would like to construct the entire facility and then sit and
wait for the permit.
Obviously, somewhere in between is likely a way that would
improve NSR but not adversely impact the program, and I think it is
important for us, if anybody has some examples or thoughts or issues
in that regard that we sort of bring them up so that we can include
them in any recommendation that might come out along that area.
Ron?
MR. VAN MERSBERGEN: Pat, I think when we get into that
discussion, I think we want to be aware of the relationship with Title
V permitting and operational flexibility. I know we can try to separate
those as long as we can, but eventually they will have to be married,
and I think we want to deal with it very soon, and this is probably as
well as any other time to do it.
MR. RAHER: That is a very good point. We will take that up.
Are there...yes, David?
MR. MCAVOY: I can tell you that several of the industry
petitioners in the Title V litigation are preparing flow charts and
materials to provide EPA with talking about how you can integrate
minor new source review with the operating permit program and how
you deal with questions of limiting potential to emit so that you can
account for some public comment and yet still have as streamlined
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148
So, we could always provide those to this group as well as the
people who are involved in the operating permit program.
MR. RAHER: Yes, well, I might suggest counsel has to tell us the
appropriateness of receiving something like that, whether that would
make EPA feel a little uncomfortable to be receiving it both in
litigation...
MR. MCAVOY: Right.
MR. RAHER: ...and in a warm atmosphere such as this.
MS. WEGMAN: Let us consult among ourselves before we decide.
MR. RAHER: Yes, I think that is an excellent...I mean, if
someone has thought and tried to place it down on a piece of paper, it
certainly would shortcut a lot of the work that potentially needs to be
done, and if it is possible, I think we will definitely be getting in touch
to see if we can go ahead and do that.
Any other discussion on that particular issue?
We have talked about the timing and the agenda upcoming, Lydia.
Do you have anything else to say in terms of follow-on or any other
issues? I think you have talked about applicability and the other
issues, so I think we are aware on that.
Are there any comments, again, from the audience, from the
public? Any issues that you believe the committee has not identified
that should be identified, should be considered by any of the subgroups
or any additional information you would like the subcommittee to take
into consideration?
If not, we shouldn't be slaves to a schedule. I would recommend
that we adjourn until the 27th of September.
MS. WEGMAN: Let me just say thank you, again, to everybody
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149
Just a reminder of Pat's suggestion that in about a month's time
if the subgroups could just let me know how things are going so I have
some confidence that something is happening out there. Thank you.
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150
CAPTION
The Meeting in the matter, on the date, and at the time and place
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PARTICIPANTS
NSR Reform Subcommittee Meeting
July 21-22, 1993
Praveen Amar
NESCAUM
129 Portland Street
Boston, MA 02173
(617) 367-8540
(617) 742-9162 fax
Barbara Bankoff
Siemens Corporation
701 Pennsylvania Ave, Suite 720
Washington, DC 20004
(202) 434-4810
(202) 347-4015 fax
Michael Barr
PUlsbury, Madison & Sutro/
National Association of Manufacturers
225 Bush Street
San Francisco, CA 94104
(415) 983-1151
(415) 477-4751 fax
S. William Becker
STAPPA/ALAPCO
444 N. Capital Street. NW #307
Washington, DC 20001
(202) 624-7864
(202) 624-7863 fax
Alice Boomhower
Amoco Corporation
Mail Code 4803
200 East Randolph Drive
Chicago, EL 60601-7125
(312) 856-2326
Bill Bumpers
Howery & Simon
1299 Pennsylvania Avenue
Washington, DC
(202) 383-7160
(202) 383-6610 fax
John Bunyak
National Park Service
P.O. Box 25287
Denver, CO 80225
(303) 969-2071
(303) 969-2822 fax
Mark Carney
U.S. Generating Co.
7475 Wisconsin Avenue
Bethesda, MD 20814
(301) 718-6899
(301) 718-6908 fax
David Carr
Southern Environmental Law Center
201 West Main Street, Suite 14
Charlottesville, VA 22902
(804) 977-4090
(804) 977-1483 fax
Dennis Crumpler
U.S. EPA, NSRS
MD-15
Research Triangle Park, NC 27711
(919) 541-0871
(919) 541-5509 fax
Dan deRoeck
U.S. EPA, NSRS
MD-15
Research Triangle Park, NC 27711
(919) 541-5593
(919) 541-5509 fax
Larry Elmore
U.S. EPA, NSRS
MD-15
Research Triangle Park, NC 27711
(919)541-5433
(919) 541-5509 fax
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Invitees (continued)
NSR Reform Subcommittee Meeting
July 21-22, 1993
Page 2
Pamela Faggert
Virginia Dept of Environmental Quality
P.O. Box 10089
Richmond, VA 23240
(804) 786-5481
Andrea Bear Field
Hunton and Williams
2000 Pennsylvania Avenue, NW
Suite 9000
Washington, DC 20006
(202) 955-1558
(202) 778-2201 fax
Rich Fisher
US DA Forest Service
c/o Rocky Mountain Station
240 W. Prospect Road
Fort Collins. CO 80526
(303) 498-1232
(303) 498-1010 fax
David Hawkins
Natural Resources Defense Council
1350 New York Avenue, NW
Suite 300
Washington, DC 20005
(202) 783-7800
(202) 783-5917 fax
John Irwin
U.S. EPA, SRAB
MD-14
Research Triangle Park, NC 27711
(919) 541-5682
(919) 541-2357 fax
Jim Jewett
Intel Corporation, SP1-22
145 S 79th Street
Chandler, AZ 85226^799
(602) 554-3621
(602) 554-3556 fax
Mark Kaiaoka
U.S. EPA - OGC
401 M Street SW
Washington, DC 20460
(202) 260-7619
(202) 260-0586 fax
Chuck Knauss
Swidler & Berlin
3000 K Street, NW
Suite 300
Washington, DC 20007
(202) 424-7644
(202) 424-7643 fax
Bill Lamason
U.S. EPA, NSRS
MD-15
Research Triangle Park, NC 27711
(919) 541-5374
(919) 541-5509 fax
Ed Lillis
Chief, Permits Program Branch
U.S. EPA
MD-15
Research Triangle Park, NC 27711
(919) 541-5586
(919) 541-5509 fax
David McAvoy
Eli Lilly and Company
Lilly Corporate Center
Drop Code 1134
Indianapolis. IN 46285
(317) 276-3753
(317) 277-6180 fax
Vivian Mclntire
Eastman Chemical Company
P.O. Box 1993
Kingsport, TN 37662
(615) 229-3045
(615) 229-4864 fax
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Invitees (continued)
NSR Reform Subcommittee Meeting
July 21-22, 1993
Page 3
Ray Menebroker
California Air Resources Board
P.O. Box 2815
2020 L Street
Sacramento. CA 95812
(916) 322-6026
(916) 445-5023 fax
Vicki Patton
U.S. EPA - OGC
401 M Street SW
Washington. DC 20460
(202) 260-7727
(202) 260-0586 fax
John A. Paul
Regional Air Pollution
Control Agency
451 W. Third Street
Dayton, OH 45422
(513) 225-5948
(513) 225-3486 fax
William F. Pedersen
Perkins Coie
607 14th Street, NW, Suite 800
Washington, DC 20005-2011
(202) 434-1612
(202) 434-1690 fax
Clara Poffenberger
U.S. EPA, SSCD
401 M Street, SW (EN 341W)
Washington, DC 20460
(203) 308-8709
(203) 308-8739 fax
Bruce Polkowsky
U.S. EPA, OAQPS, ASB (SAMI)
MD-12
Research Triangle Park, NC 27711
(919) 541-5532
Patrick Raher
Hogan & Hartson
555 13th Street, NW
Washington, DC 20004
(202) 637-5682
(202) 637-5910 fax
Leslie Ritts
Chadbome and Parke
1101 Vermont Avenue, NW, Suite 900
Washington, DC 20005
(202) 962-4559
(202) 289-3002 fax
Mike Sewell
U.S. EPA, NSRS
MD-15
Research Triangle Part, NC 27711
(919) 541-0873
Chris Shaver
Environmental Defense Fund
1405 Arapahoe Avenue
Boulder. CO 80302
(303) 440-4901
(303) 440-8052 fax
David Solomon
U.S EPA
MD-15
Research Triangle Park, NC 27711
(919) 541-5375
(919) 541-5509 fax
Donald Theiler
Wisconsin Department of Natural Resources
Bureau of Air Management
P.O. Box 7921
Madison, WI 53703
(608) 266-7718
(608) 267-0560 fax
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Invitees (continued)
NSR Reform Subcommittee Meeting
July 21-22, 1993
Bill Tyndall
Office of Policy Analysis &. Review
U.S. EPA - ANR^43
401 M Street, SW
Washington, DC 20460
(202) 260-6499
Ron Van Mersbergen
U.S.EPA - Region V (MCI8J)
77 W. Jackson Street
Chicago, IL 60604
(312) 886-6056
(312) 886-5824 fax
Lydia Wegman
Deputy Director, OAQPS
U.S. EPA
MD-10
Research Triangle Park, NC 27711
(919) 541-5506
Gregg Worley
U.S. EPA, Region IV
345 Courtland Street, NE
Atlanta, GA 30365
(404) 347-5014
(404) 347-3059 fax
Richard Zbur
Latham & Watkins
633 West Fifth Street
Suite 3800
Los Angeles, CA 90071
(213) 485-1234
(213) 891-8764 fax
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