Document rBLzX52Z4602JQz4KMKxEXM4V

May 9, 2017 VIA Electronic Filing RE: US Environmental Protection Agency Office of Regulatory Policy and Management Request for Comment, Evaluation of Existing Regulations 82 FR 17793 (April 13, 2017) Docket No. EPA-HQ-OA-2017-0190 Dear Associate Administrator Dravis: In a Request for Comment implementing Executive Order 13777, "Enforcing the Regulatory Reform Agenda," the US Environmental Protection Agency (EPA) seeks input from the public on existing regulations that should be repealed, replaced, or modified. The information EPA seeks will assist the Regulatory Reform Task Force in identifying and prioritizing regulations per the Executive Order - that interfere with regulatory reform initiatives or that are outdated, unnecessary or ineffective. EPA requests that commenters be specific and include supporting data such as Federal Register citations and suggestions for repeal, replacement or modification. The Cement Kiln Recycling Coalition (CKRC) is pleased to submit the attached comments suggesting specific EPA regulations for repeal or modification. CKRC filed these comments in response to the earlier US Department of Commerce Request for Information, Impact o fFederal Regidations on Domestic Manufacturing, 82 FR 12786 (March 7, 2017). The Department of Commerce asked the public to identify regulations that impose duplicate or unnecessary burdens on US manufacturing. CKRC's submission to the Department of Commerce also directly responds to EPA's Request: regulations that double the burden on industry without any additional health or environmental benefit are appropriate for repeal, replacement or modification. CKRC's submission also provides the detail sought by EPA, with specific Federal Register citations and suggestions for how EPA could eliminate the double regulatory burden. CKRC is a national trade association representing cement manufacturers in the US that recycle the value in energy-bearing secondary materials by using them as fuel in kilns that produce Portland cement. CKRC also represents companies that collect, process, manage, and market alternative fuels for use in cement kilns. According to the Portland Cement Association (PCA), "U.S. cement manufacturers employ over 14,300 workers with an annual payroll of nearly $1 billion. When including related industries such as concrete, the number of employees grows to nearly 535,000 with an annual payroll of approximately $25 billion." CKRC's membership represents the operation of facilities, plants, and offices in almost every state in our country and employs approximately 7,000 workers whose jobs are associated with the process of beneficially recovering energy from alternative fuels in the manufacture of Portland cement. PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00001 Environmental Protection Agency May 9, 2017 Page 2 CKRC and its members appreciate the opportunity to bring to the attention of the EPA several federal regulations that duplicate other regulations or needlessly impose burdens and should be modified. As noted above, the revisions we propose in the attached comments would not result in less protection of human health or the environment. CKRC would be pleased to provide additional information that may be helpful to a better understanding of the burdens on its member facilities. Sincerely, /s/Michelle G. Lusk Michelle G. Lusk Executive Director Attached: Comments of CKRC in response to US Department of Commerce Request for Information, Impact o fFederal Regulations on Domestic Manufacturing, 82 FR 12786 (March 7, 2017). PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00002 March 31, 2017 VIA Electronic Filing RE: US Department of Commerce Office of Policy and Strategic Planning Notice, Request for Information Impact of Federal Regulations on Domestic Manufacturing 82 FR 12786 (March 7, 2017) Docket 170302221-7221-01 Dear Director Comstock: In a Request for Information implementing Executive Order 13771, the Department of Commerce seeks information on federal permitting requirements that impact permitting and regulations that burden domestic manufacturing. The Request seeks General Information, and information about the Manufacturing Permitting Process and Regulatory Burden/Compliance. CKRC is pleased to submit these comments in response to the Request for Information. INTRODUCTION The Cement Kiln Recycling Coalition (CKRC) is a national trade association representing cement manufacturers in the U S. that recycle the value in energy-bearing secondary materials by using them as fuel in kilns that produce Portland cement. CKRC also represents companies that collect, process, manage, and market alternative fuels for use in cement kilns. CKRC member companies comply with myriad regulatory requirements under many different environmental and health and safety laws. Our members are dedicated to operating in accordance with the regulatory requirements to ensure the protection of human health and the environment. Over the last 30 years, engineers, combustion and testing specialists, risk assessors, and technicians have worked together to develop significant resources to understand the complex combustion and emissions control opportunities accomplished while producing Portland cement. Decades of rulemaking development, regarding both the cement kiln combustion system process emissions and the use of alternative fuel in the process, have resulted in the stringent regulation PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00003 of our facilities under the CAA and other environmental laws. Extensive emissions testing to demonstrate compliance and detailed studies have documented the efficacy of using secondary materials as fuel in cement kilns. Agency review of these efforts has concluded that the use of alternative fuel does not pose an unacceptable risk to human health and the environment, and that the regulatory process is in place to support this conclusion. We believe it is important to develop and implement regulatory requirements in a manner that ensures the manufacture of our important product, Portland cement, remains a viable process in the U.S. Identifying and addressing areas of regulation that are duplicative or overly-burdensome with no related increase in environmental or human health protection is essential. Toward that end, CKRC and its members look forward to working cooperatively with the Department of Commerce as it seeks information on federal permitting requirements that impact permitting and regulations that burden domestic manufacturing. According to the Portland Cement Association (PCA), the "U.S. cement manufacturers employ over 14,300 workers with an annual payroll of nearly $1 billion. When including related industries such as concrete, the number of employees grows to nearly 535,000 with an annual payroll of approximately $25 billion." CKRC's membership represents the operation of facilities, plants, and offices in almost every state in our country and employs approximately 7,000 workers whose jobs are associated with the process of beneficially recovering energy from alternative fuels in the manufacture of Portland cement. CKRC member companies' use of alternative fuels represents a significant sustainability component incorporated in cement manufacturing operations throughout the U.S. Each year, the United States generates millions of tons of secondary materials that have significant energy value. To recover this energy and avoid wasting it, the cement industry uses very substantial quantities of these materials as alternative fuel, which replaces a portion of the non-renewable traditional fossil fuels used to provide energy for the cement manufacturing process. The U.S. uses over 90 million tons of cement every year, a rate of use that grows when the economy strengthens. Cement is the active ingredient in concrete, the most widely used construction material in the world. Cement is produced in huge rotary kilns by heating a mixture of minerals to over 2,600F. This is a very energy intensive process and cement manufacturers have developed technology that allows them to use energy-rich secondary materials created by other industrial processes to replace non-renewable fossil fuels. In 2 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00004 addition to alternative fuels derived from hazardous wastes, non-hazardous alternative fuels can be a wide variety (or mixture) of energy-bearing materials such as tires and similar rubber-related materials, paper and plastics, fibers and fabrics, and much more. The benefits of energy recovery are important for the environment. When cement kilns use alternative fuels derived from secondary materials, substances that would otherwise be regarded as waste are removed from the environment and handled and re-used in a safe and responsible manner. In addition, the amount of fossil fuels needed to produce cement is reduced, thereby conserving non-renewable energy resources and reducing emissions of greenhouse gases. For example, as EPA has noted, "both GHG and PM emissions have been reduced as a co-benefit of the use of secondary materials." "For example, the GHG rate associated with the combustion of scrap tires is approximately 0.081 M TC 02e per MMBtu of scrap tires combusted, while the GHG emissions rate for coal is approximately 0.094 M TC 02e per MMBtu. Combined with the avoided extraction and processing emissions 0.006 MTC0 2 e/MMB1u for coal, the total avoided GHG is 0.019 M T C 02e per MMBtu." EPA has also noted additional benefits: "The use of secondary materials, such as use as a fuel in industrial processes may also result in other benefits. These may include reduced fuel imports, reducing negative environmental impacts caused by previous dumping (e.g., tires), and reduced methane gas generation from landfills." Proposed Rule, Identification o fNon-Hazardons Secondary Materials That Are Solid Waste, 75 FR 31844, 31849 (June 4, 2010). CKRC's member companies represent a prime example of what can be accomplished when manufacturing a vital product and protecting human health and the environment are well-balanced. The energy and materials recovery realized in the cement manufacturing process embraces sustainability goals and reflects the very important interconnections among our economy, society and the environment. 3 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00005 COMMENTS CKRC provides the following comments, which follow the format provided in the Request for Information. We first provide GENERAL INFORMATION about facilities that manufacture cement using hazardous and nonhazardous secondary materials (HSM and NHSM) as fuels, including some materials regulated as hazardous waste. Then, regarding the MANUFACTURING PERMITTING PROCESS, we identify several specific permitting requirements of the US Environmental Protection Agency (EPA) that duplicate other federal permitting requirements and identify several States whose permitting procedures are exemplary and should be considered as models for improving federal permitting procedures. Lastly, we provide information regarding unnecessary REGULATORY BURDEN on CKRC members' facilities. Of the rules identified, some are currently in effect and others have been proposed or finalized but are not yet in effect. In the case of the regulations not yet in effect, a pending administrative proceeding offers an opportunity to address the needless duplication, complexity and burden. I. GENERAL INFORMATION A. NAICS codes: 327310 (Cement Manufacturing) 562211 (Hazardous Waste Treatment and Disposal) B. What do you manufacture: CKRC's member companies manufacture Portland cement and replace a portion of their fossil fuel needs by recovering energy found in hazardous waste and non-hazardous secondary materials to fuel the cement kilns in this energy-intensive production process. Other non-hazardous secondary materials are also widely used as ingredients in the cement manufacturing process to replace quarried rock. C. Location of CKRC-member facilities/plants that are involved in the recovery of energy from hazardous or non-hazardous alternative fuels in the manufacture of cement and/or the use of nonhazardous secondary materials as ingredients in the cement manufacturing process: Alabama, Arkansas, Colorado, Indiana, Kansas, Maine, Mississippi, Missouri, Nevada, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, and Washington. 4 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00006 II. MANUFACTURING PERMITTING PROCESS A. Federal permit that overlaps with another federal permit Resource Conservation and Recovery Act (RCRA) Subparts Duplicate Clean Air Act (CAA) Subparts Regulatory Application Air Emission Standards from Process Vents Air Emission Standards for Equipment Leaks Air Emission Standards from Tanks, Surface Impoundments, Containers Duplicative RCRA Provision Part 264, Subpart AA Part 265, Subpart AA Part 264, Subpart BB Part 265, Subpart BB Part 264, Subpart CC Part 265, Subpart CC Duplicative CAA Provision Part 60, Subpart NNN Part 63, Subpart DD Part 60, Subpart V Part 60, Subpart VV Part 63, Subpart DD (incorporating Subpart H) Part 60, Subpart Kb (Tanks only) Part 61, Subpart FF Part 63, Subpart DD Description o f overlap and burden: CKRC member facilities are subject to various provisions of RCRA and the CAA. In many cases, these two statutes do not necessarily cross-reference each other, which can lead to inconsistency and duplication. In the case of the Part B RCRA Permit and the corresponding CAA Permit, the statutes are substantially duplicative. See 40 CFR 270 and 40 CFR 70-71. Both RCRA and CAA permits cover the same air emissions from the facility for emissions from waste management units if the applicability criteria are met. This results in needlessly burdensome requirements on facilities that are subject to both statutes, including the submission of duplicative permit application information, development and implementation of duplicative compliance documentation, submission of duplicative reporting requirements, etc. Requiring the facility to provide and regulating the same information twice does not provide any additional protection to human health or the environment. The following explains the duplicative RCRA and CAA air emission standards identified in the above Table. 5 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00007 RCRA incorporates three different air emission standards at 40 CFR Part 264, Subparts AA, BB, and CC.1 The Subpart AA, BB, and CC regulations are required to be addressed in the RCRA permitting process. See 40 CFR 270.24, 270.25, and 270.27. CAA regulations also apply to the same types of facilities and units as those covered by RCRA regulations in 40 CFR Part 264, Subparts AA, BB, and CC, which are substantively very similar to and significantly overlap with these RCRA standards. Where applicable, these CAA standards must be addressed in a facility's Title V or State Operating Permit. See 40 CFR 70.8(d). The following describes the overlaps and proposes solutions to each issue. Issue 1: Regulatory Language Differences in Subparts AA, BB, and CC: The overlap between the RCRA and CAA standards is addressed by allowing facilities to comply with CAA standards in lieu of the RCRA standards. See Subparts AA, BB, and CC, 40 CFR 264.1030(e), 264.1064(m), and 264.1080(b)(7)). As such, RCRA Subparts AA and CC specifically exempt, or exclude from applicability under RCRA, equipment that the owner/operator certifies is providing air emission controls in accordance with CAA rules under 40 CFR Parts 60, 61, or 63. See 40 CFR 264.1030(e) and 264.1080(b)(7). Flowever, RCRA Subpart BB language is different. Subpart BB does not fully exclude the relevant equipment from Subpart BB, rather, it requires the facility to "determine compliance" with RCRA - i.e. the facility must document compliance with the RCRA provisions by showing compliance with CAA regulations at 40 Part 60, 61, or 63. See 40 CFR 264.1064. In other words, the facility remains subject to RCRA Subpart BB, but may "demonstrate compliance" by documenting compliance with another rule. Therefore, the facility may remain subject to both RCRA and CAA standards for the same equipment and must include this information in each permit application.1 1Note that 40 CFR Part 265 contains substantively identical regulations for interim status facilities and Large Quantity Generators (LQGs). The explanation below references Part 264 standards for permitted TSDFs, but should be considered as comments for the applicable Part 265 standards as well. 6 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00008 Proposed Solution'. Subpart BB could be revised to incorporate the same applicability exclusionary language of Subparts AA and CC. This revision would be a conforming, technical change to the regulations, which EPA could accomplish under existing regulatory authority. Issue 2: CAA Standards Do Not Offer the Same RCRA Exclusionary Options: Depending on the types of units at a RCRA Treatment, Storage and Disposal Facility (TSDF), the applicable RCRA standards may be preferable for application at a hazardous waste TSDF than the corresponding CAA standards for the regulated entity. Flowever, the CAA and standards detailed above do not include similar language to allow RCRA permitted treatment storage and disposal facilities (TSDFs) to implement the Subpart AA, BB, or CC standards in lieu of the CAA standards. Proposed Solution'. The CAA could defer to RCRA to specifically exempt, or exclude from applicability under CAA, equipment that the owner operator certifies is "equipped with and operating air emission controls in accordance with the ... requirements of an applicable Resource Conservation and Recovery Act regulation codified under 40 CFR part 264, Subparts AA, BB, and/or CC." Issue 3: RCRA Air Standards ShouldMirror Certain CAA Exemptionsfor Minor Sources The RCRA Subparts AA, BB, and CC air emissions standards apply to a TSDF irrespective of whether the facility is a CAA minor or major source. Several TSDF facilities are CAA minor/area sources of volatile organic compounds (YOCs) and hazardous air pollutants (FlAPs) and therefore, have minimal impacts on air quality. Demonstrating compliance with air emission standards at these minor/area sources incurs significant costs and is unduly burdensome given their low emissions. For these reasons, EPA has determined that the Part 61 and 63 CAA standards detailed above do not apply to these minor/area sources. Flowever, the RCRA Subparts AA, BB, and CC air emission standards do apply no matter the amount of emissions. To achieve consistent RCRA and CAA air emission regulation of sources, minor sources already exempt from CAA standards should likewise be either exempt from RCRA Subparts AA, BB, and CC or be allowed to comply with CAA air emission standards in lieu of RCRA Subparts AA, BB, and CC air standards. 7 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00009 Proposed Solution that would exclude CAA minor sources: RCRA should be amended to be consistent with the CAA and limit applicability of these standards to "major sources" of VOCs and HAPs. This could be accomplished by revising 40 CFR 264.1030(a) and 264.1050(a), as follows (proposed revision in bold underline): "(a) The regulations in this subpart apply to owners and operators of facilities that treat, store, or dispose of hazardous wastes (except as provided in 264.1) and are major sources under the Clean Air Act." and Revise 40 CFR 264.1080(a) as follows (proposed revision in bold underline): "(a) The requirements of this subpart apply to owners and operators of all facilities that treat, store, or dispose of hazardous waste in tanks, surface impoundments, or containers subject to either subpart I, J, or K of this part except as 264.1 and paragraph (b) of this section provide otherwise, and are major sources under the Clean Air Act." Alternative Proposed Solution that would allow CAA minor sources to comply with CAA major source standards in lieu o fRCRA air emission standards: RCRA should be amended to be consistent with the CAA and allow sources that are minor for VOCs and HAPs to comply with CAA major source standards in lieu of RCRA air emission standards. This could be accomplished by revising 40 CFR 264.1030(e), 264.1064(m), and 264.1080(b)(7) as follows (proposed revision in bold underline): 40 CFR 264.1030(e): (e) The requirements of this subpart do not apply to the process vents at a facility where the facility owner or operator certifies that all of the process vents that would otherwise be subject to this subpart are equipped with and operating air emission controls in accordance with the process vent requirements of an applicable Clean Air Act regulation codified under 40 CFR part 60, part 61, or part 63. This exemption shall also be available to minor sources under the Clean Air Act that elect to comply with one of these standards. The documentation of compliance under regulations at 40 CFR part 60, part 61, or part 63 shall be kept with, or made readily available with, the facility operating record. and 40 CFR 264.1064(m) (m) The owner or operator of a facility with equipment that is subject to this subpart and to regulations at 40 CFR part 60, part 61, or part 63 may elect to determine compliance with this subpart either by documentation pursuant to 264.1064 of this subpart, or by documentation of compliance with the regulations at 40 CFR part 60, part 61, or part 63 pursuant to the relevant provisions of the regulations at 40 part 60, part 61, or part 63. This exemption shall also be available to minor sources under the Clean 8 PC) Box 7553 Arlington, V.A 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00010 Air Act that elect to comply with one of these standards. The documentation of compliance under regulations at 40 CFR part 60, part 61, or part 63 shall be kept with or made readily available with the facility operating record. and 40 CFR 264.1080(b)(7): (7) A hazardous waste management unit that the owner or operator certifies is equipped with and operating air emission controls in accordance with the requirements of an applicable Clean Air Act regulation codified under 40 CFR part 60, part 61, or part 63. This exemption shall also be available to minor sources under the Clean Air Act that elect to comply with one of these standards. For the purpose of complying with this paragraph, a tank for which the air emission control includes an enclosure, as opposed to a cover, must be in compliance with the enclosure and control device requirements of 264.1084(i), except as provided in 264.1082(c)(5). B. Proposed federal permit that overlaps with another federal permit Proposed Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) Financial Assurance requirements overlap with RCRA provisions Statute CERCLA 108(b) RCRA 3004(a)(6); 3004(t) Regulatory Provisions that overlap or are needlessly complex 40 CFR 320--Financial Responsibility Requirements For CERCLA Liabilities Examples of requirements: 40 CFR 320.1 (financial responsibility to reflect risk) 40 CFR 320.61(a) (health assessment, response and natural resource damages) 40 CFR 320.25 and 320.27 (requirements apply until EPA releases facility) 40 CFR 264.140-264.151, Subpart H--Financial Requirements Examples of requirements: 40 CFR 264.143 (closure) 40 CFR 264.145 (post-closure care) 40 CFR 264.147(a) (liability for sudden accidental occurrences) 40 CFR 264.147(b) (non-sudden accidental occurrences 9 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00011 Description o f overlap and burden: EPA has proposed new requirements under CERCLA 108(b) that require facilities to demonstrate financial responsibility to cover costs of releases and potential releases of hazardous substances. Financial Responsibility Requirements Under CERCLA 108(b) for Classes o fFacilities in the Hardrock Mining Industry, 82 FR 3388 (Jan. 11, 2017). EPA intends to apply these new requirements to a number of industry source categories, beginning with the hardrock mining sector. The proposed financial assurance requirements under CERCLA 108(b) would duplicate the financial assurance requirements under several other authorities, including RCRA federal requirements, State requirements and other possibly applicable laws. Most CKRC-members have facilities that are permitted under RCRA Subtitle C, and comply with RCRA 3004 financial responsibility requirements. RCRA 3004(a)(6) and (t) requires sources to establish financial responsibility, including for corrective action, as EPA determines is "necessary or desirable...." EPA regulations require extensive financial assurances, including, for example, (1) closure of the facility; (2) post-closure care; (3) liability coverage for sudden accidental occurrences; and (4) coverage for non-sudden accidental occurrences. In some cases, CKRC facilities must also meet overlapping State financial assurance requirements. Proposed Solution: CERCLA Financial Assurance requirements should be drafted so that they do not duplicate already burdensome and protective Financial Assurance requirements of other statutes applicable to the same sources. Given the status of this rulemaking, EPA has an opportunity to address this duplication and burden before it is finalized. EPA is developing the CERCLA 108(b) rules pursuant to a judicial consent order that sets deadlines for EPA to propose and finalize Financial Assurance rules for several specified source categories, and that requires EPA to assess the need for applying these requirements to other industry sectors. See In re Idaho Conservation League, 811 F.3d 502 (DC Cir. 2016). EPA's new Financial Assurance rules will apply to all other industry sectors for which EPA - at some future date - may determine the rules are appropriate. However, because EPA published the proposed rule as applicable to hardrock mining, all other industry sectors that may be covered in the future have not been given adequate notice of the rules that may affect them. Therefore, CKRC suggests that EPA revise the proposed rule to eliminate the duplication and issue a new 10 PC) Box 7553 Arlington, VA 22207 (7(A) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00012 Notice of Proposed Rulemaking. This would resolve the substantive overlap and cure the procedural defect of the pending rulemaking proceeding. C. State Agencies whose permitting practices should be widely implemented CKRC members have facilities in a broad geographic range and subject to many different State permitting agencies. Several States have exemplary permitting procedures and could be considered as models for improving federal permitting procedures. In addition to specific improvements in Federal permitting, CKRC suggests a re-commitment by EPA and other Federal authorities to the supporting role of the Federal government clearly enunciated by Congress in the US environmental statutes. In the Clean Air Act, for example, Congress clearly defined the Federal role as leading a research effort and providing support to the States' own pollution prevention programs: (b) The purposes of this title are-- (1) to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population; (2) to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution; (3) to provide technical andfinancial assistance to State and local governments in connection with the development and execution o f their air pollution prevention and control programs; and (4) to encourage and assist the development and operation of regional air pollution prevention and control programs. 42 U.S.C. 7401(b), CAA 101(b) (emphasis added). In keeping with these principles, EPA and other Federal regulators should defer to State agencies as the primary decision-makers, including when States are running programs under authorized or delegated authority by EPA. State agencies have proven their programs to be environmentally protective and at the same time more agile and able to adapt quickly to circumstances specific to the State or locale. 1. South Carolina Expedited Review Program. The South Carolina Department of Health and Environmental Control (DHEC) Expedited Review Program offers facilities applying for an air construction permit a shortened permit application review time frame in exchange for a fee paid by the facility. For example, a minor source construction permit that is accepted into the Expedited Review Program is expected to be issued within 30 calendar days rather than the regulatory-required 90 days. A large project that requires Prevention of Significant Deterioration (PSD) review has an expected1 11 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00013 issuance 120-150 calendar days,2 including the 30 day public comment period, following acceptance into the program (the required regulatory issuance is within 270 days).3 The Expedited Review Program offers facilities an opportunity to initiate time-sensitive projects much more quickly. Empirical knowledge suggests the program is widely accepted and utilized by industry. The DHEC's Standard Operating Procedures for this program are attached. 2. Pennsylvania Department of Environmental Protection (PADEP) Request for Determination (RFD) Procedures. The RFD process allows facilities to obtain permit exemption determinations for projects of "minor significance." The on-line RFD process allows users to "self-register" for the program and submit a request following the RFD template forms. This improves the data gathering process for the PADEP's review, resulting in faster evaluations and turn-around time. CKRC member experience ranges from two to three days to three weeks. 3. Texas Permit by Rule Program. Knowing that the air permitting process is often complex and lengthy, the State of Texas has pre-determined that air quality is not threatened by certain types of small-scope construction projects, and has stream-lined the authorization process for such projects via its permit-byrule (PER) program. The intent of PBRs is to allow plant operations to carry out small-scope changes without waiting on agency approval--and without overwhelming the agency with reviews. Some PBRs require registration timed with the activity, while others require a notification. A submittal to the agency usually consists of a process description, a project description, an area map, a plot plan, a Core Data form, a simple form, various standardized checklists, a copy of the PBR, a line-by-line description of how the project meets each requirement of the PBR, and the supporting emission calculations. If the PBR does not require site approval from the TCEQ (and many do not), the facility may begin construction (or the activity) right after submittal of registration to TCEQ. Generally, PBRs offer numerous Texas facilities a high degree of permitting flexibility. 4. Indiana Department of Environmental Management (IDEM) presents a positive and cooperative spirit in the air permitting process by working hard to meet internal deadlines in a timely manner. The state also 2A PSD application that does not impact a Class I area (i.e., where modeling is not required) has an issuance date of 120 days following program acceptance, and a PSD application impacting a Class I area has an issuance date of 150 days after acceptance into the program. 3In these examples, the fee for a minor construction permit is $3,000, and a PSD permit ranges from $20,000 - $25,000 dependent upon whether or not the project impacts a Class I area. 12 PC) Box 7553 Arlington, V.A 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00014 has authority to do risk assessments which significantly helps streamline the process and make for a much more efficient permitting experience. III. REGULATORY BURDEN / COMPLIANCE - EPA REGULATIONS A. How regulatory compliance could be simplified Clean Water Act (CWA) Spill Prevention, Control, and Countermeasure (SPCC) requirements overlap with Resource Conservation and Recovery Act (RCRA) Contingency Plan Statute CWA RCRA Regulatory Provisions that overlap or are needlessly complex 40 CFR 112.7: General Requirements for Spill Prevention, Control, and Countermeasure Plans. 40 CFR Part 264, Subpart D: RCRA Contingency Plan Provisions 40 CFR Part 265, Subpart D: RCRA Contingency Plan Provisions Description o f overlap and burden: The CWA SPCC regulations are intended to prevent and designed to establish countermeasures for accidental discharges of oil that could affect water quality. These rules apply to tanks/containers where oil is considered a hazardous waste under 40 CFR Part 261 or has been mixed with hazardous waste and the tank is therefore subject to the Federal RCRA standards and, in some cases, the RCRA Contingency Plan provisions. The CWA SPCC requirements duplicate RCRA requirements and thus impose an unnecessary burden and complexity for no apparent environmental benefit. Proposed Solution: SPCC regulations must be revised to exempt oil tanks/containers that contain material defined as hazardous waste and subject to the RCRA Contingency Plan requirements at 40 CFR Part 264, Subpart D or 40 CFR Part 265, Subpart D. To accomplish this, we propose this specific revision: Revise 40 CFR 112.1(d) to exclude from regulation, tanks and containers that are used to store hazardous waste as defined at 40 CFR 261.3 and are subject to the RCRA Contingency Plan Requirements at Part 264, Subpart D or Part 265, Subpart D. 13 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00015 B. How regulatory compliance could be simplified Clean Air Chemical Accident Prevention Program Standards Overlap with OSHA PSM Standards Statute Regulatory Provisions that overlap or are needlessly complex CAA Chemical Accident Prevention 40 CFR Part 68, Subpart D: Program 3 Prevention Program Provisions OSHA Process Safety Management 29 CFR Part 1910.119: Process Safety Management of Highly (PSM) Standards Hazardous Substances Description o f needless complexity and burden: Section 112(r) of the 1990 Clean Air Act, 42 U.S.C. 7412(r), required promulgation of regulations for the prevention of accidental releases of regulated substances from certain regulated stationary sources. These regulations are outlined in detail at 40 CFR Part 68, Chemical Accident Prevention Provisions. The goal of Part 68 (otherwise referred to as the "risk management program (RMP)"), is to prevent accidental releases of substances that can cause serious harm to the public and the environment from short-term exposures and to mitigate the severity of releases that do occur. Part 68 requires facilities to determine their applicability under the rule by performing a threshold determination for all chemicals listed at 40 CFR 68.130. If a facility determines that it manages one or more regulated substances in a process at or above the appropriate threshold quantity, it must then determine the appropriate Program Level with which it must comply under RMP. These Program Levels range from Program 1, which requires minimal prevention requirements other than to coordinate emergency activities with local emergency response agencies, to Program 3, which requires facilities to implement a rigorous Prevention Program. As acknowledged by EPA, the Program 3 Prevention Program Requirements of the RMP regulations were modeled after the OSHA Process Safety Management (PSM) Standards promulgated at 29 CFR 1910.119. So much so, that the RMP Program 3 Prevention Program Requirements are virtually identical to the requirements detailed under the OSHA PSM Standards. The requirement for facilities regulated under RMP to reproduce this information as part of its Risk Management Plan submission to EPA is the definition of redundant and overly burdensome. 14 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00016 Proposed Solution: The RMP regulations at 40 CFR Part 68 could be revised to exempt facilities from the Program 3 Prevention Program Requirements if the owner/operator certifies that it has implemented a PSM program under 29 CFR 1910.119 for the regulated process that would normally be subject to the Program 3 Prevention Program Requirements. This certification can be included with the on-line RMP submission to EPA. Clean Air Chemical Accident Prevention Program Standards Overlap with RCRA Standards Statute Regulatory Provisions that overlap or are needlessly complex CAA Chemical Accident Prevention 40 CFR Part 68, Subpart E: Emergency Response Provisions RCRA TSDF Contingency Plan 40 CFR Part 264, Subpart D: Contingency Plan and Emergency Standards Procedures Description o f needless complexity and burden: 40 CFR 68.90 and 68.95 require that owners or operators of a stationary source with Program 2 and Program 3 processes "develop and implement an emergency response program for the purpose of protecting public health and environment.. . The requirements for this emergency response program include the following elements: (1) An emergency response plan, which shall be maintained at the stationary source and contain at least the following elements: (i) Procedures for informing the public and local emergency response agencies about accidental releases; (ii) Documentation of proper first-aid and emergency medical treatment necessary to treat accidental human exposures; and (iii) Procedures and measures for emergency response after an accidental release of a regulated substance; (2) Procedures for the use of emergency response equipment and for its inspection, testing, and maintenance; (3) Training for all employees in relevant procedures; and (4) Procedures to review and update, as appropriate, the emergency response plan to reflect changes at the stationary source and ensure that employees are informed of changes. 15 PC) Box 7553 Arlington, VA 22207 (7(A) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00017 40 CFR 68.95(a). 40 CFR Part 264, Subparts C and D (and Part 265, Subparts C and D for Interim Status Facilities) require TSDFs to prepare and implement a Preparedness and Prevention Procedures and a Contingency Plan and Emergency Procedures to minimize these same risks at facilities that store RCRA hazardous waste, which may also be regulated under the CAA RMP regulations. The RCRA Contingency Plan, Preparedness and Prevention, and Training Requirements also require the following shared elements with the RMP Emergency Response Program: Procedures for notifying appropriate State or local agencies with designated response roles ( 264.56(a)(2) and (d)(2)) Procedures for emergency response ( 264.56) Procedures for the use, inspection and testing of emergency equipment ( 264.52(e), 264.33) Contingency Plan Training ( 264.16) Procedures for updating the Contingency Plan ( 264.54) This overlap in regulatory provisions requires RCRA TSDFs to submit to EPA, Emergency Response Plan information that duplicates the Contingency Plan information that has been submitted to, and approved by, the RCRA-authorized State agencies. Proposed Solution: The CAA RMP regulations should be revised to exempt facilities from the Emergency Response Program requirements at 40 CFR Part 68, Subpart E, if the facility is required to prepare and implement a Contingency Plan under the Federal RCRA Permitting or Interim Status regulations at 40 CFR Parts 264 or 265. Clean Air Chemical Accident Prevention Program Applicability and Overlap with RCRA Standards Statute Regulatory Provisions that overlap or are needlessly complex CAA Chemical Accident Prevention 40 CFR Part 68.10: Applicability Provisions RCRA TSDF Standards 40 CFR Part 264.72(c): Manifest Discrepancies in Type 16 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00018 Description o f needless complexity and burden: For purposes of determining applicability of the RMP regulations, 40 CFR 68.10(a) states, in part, that: (a) An owner or operator of a stationary source that has more than a threshold quantity of a regulated substance in a process, as determined under 68.115, shall comply with the requirements of this part no later than the latest of the following dates: *** (3) The date on which a regulated substance is first present above a threshold quantity in a process." A process, under RMP, is defined at 68.3 as follows: Process means any activity involving a regulated substance including any use, storage, manufacturing, handling, or on-site movement of such substances, or combination of these activities. For the purposes of this definition, any group of vessels that are interconnected, or separate vessels that are located such that a regulated substance could be involved in a potential release, shall be considered a single process. RCRA TSDF facilities many times receive hazardous waste in containers that must be off-loaded from the transportation vehicle and temporarily staged at the facility while personnel sample the incoming containers and implement the facility's RCRA Permit Waste Analysis Plan (WAP) (i.e., implement its incoming shipment review procedures). At this time, the facility has not accepted the hazardous waste into permitted storage. However, based on the RMP definition of "process," in the event that a RCRA TSDF were to identify a waste stream in its temporary staging area that contained an RMP chemical in excess of the applicable RMP threshold quantity, the RMP applicability standards at Section 68.10(a) could be construed to read that the facility is subject to the RMP standards at that time. Due to this potential issue, several facilities may believe it necessary to prepare and submit a "predictive filing" under RMP in the event that a material were to be delivered to the site above the regulatory thresholds, even though it would be rejected and not accepted into permitted storage. The preparation of an RMP program and submission of a predictive filing is an unnecessary and burdensome process to account for such short-term scenarios. As detailed above, the Federal RCRA standards allow facilities to "receive" waste streams while they implement its WAP and, if necessary, reject the wastes before they are considered to be part of the "Permitted Storage." We believe that a similar concept should be incorporated into the RMP standards by excluding from applicability, waste materials received at facilities that are undergoing incoming shipment review procedures under the facility's WAP and not yet "accepted into storage." 17 PC) Box 7553 Arlington, VA 22207 (7(A) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00019 Proposed Solution: 40 CFR 68.10(a) could be revised as follows (bold underline indicates proposed revisions): "(a) Except as provided at 568.10(a)(4), an owner or operator of a stationary source that has more than a threshold quantity of a regulated substance in a process, as determined under 68.115, shall comply with the requirements of this part no later than the latest of the following dates: *** (4) RMP chemicals temporarily received and staged at a RCRA treatment storage and disposal facility (TSDF) that are undergoing incoming shipment acceptance review procedures under the facility's RCRA Waste Analysis Plan shall not be considered to be part of the facility's "process" until they have been accepted under the facility's RCRA permit and placed in permitted storage." C. How regulatory compliance could be simplified Recently amended Clean Air Act Risk Management Plan provisions Statute CAA RCRA Regulatory Provisions that overlap or are needlessly complex 40 CFR Parts 68.60 and 68.81(root cause analysis) 40 CFR Parts 68.58, 68.59, 68.79, and 68.80 (compliance audit) 40 CFR 68.93(a) (local responder coordination) 40 CFR Part 264 (contingency plan required field exercises) Description o f needless complexity and burden: EPA recently finalized revisions to its CAA Risk Management Program. Final Rule: Accidental Release Prevention Requirements: Risk Management Programs Under the CleanAir Act, 82 FR 4594 (Jan. 13, 2017). Several of the new provisions increase regulatory burden without improving environmental, health or safety protections. For example, the amendments require root cause analysis for events that do not result in a release; impose onerous third-party audit requirements; new requirements for Emergency Response Program to duplicate existing coordination with local responders; mandate new field and table-top emergency response drills; mandate that chemical hazard information be made available to the Local Emergency Planning Committee; and require that certain RMP and chemical hazard information be made available to the public in the 18 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00020 local library or other readily available manner. These provisions duplicate existing law or increase burden but they do not enhance the safety of facilities or provide any additional prevention of harm. Worse, some of the new amendments will create safety risks, for example, by requiring disclosure of sensitive site data that could create security concerns. Proposed Solution: EPA has granted a Petition for Administrative Reconsideration of the final rule and has stayed the effective date of the rule to June 19, 2017. Final Rule; Delay of Effective Date: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay o fEffective Date, 82 FR 13968 (Mar. 16, 2017). EPA could use the administrative review and proceed with additional rulemaking proceedings to analyze and address this needless duplication. In comments on the proposed rule, CKRC provided specific suggestions for addressing each area of concern. These are attached. CONCLUSION CKRC appreciates the opportunity to bring to the attention of the Department of Commerce and the Environmental Protection Agency, several federal regulations that duplicate other regulations or needlessly impose burdens. The revisions we propose here would not result in less protection of human health or the environment. CKRC would be pleased to provide additional information that may be helpful to a better understanding of the burdens on its member facilities. 19 PC) Box 7553 Arlington, VA 22207 (703) 624-4513 www.ckrc.org Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00021 * dhec Standard Operating Procedures Expedited Review Program Bureau of Air Quality Air Quality Construction Permits Scope S.C. Code of Laws, Title 44, Section 44-1-165 authorizes the Department of Health and Environmental Control (Department) to pilot an Expedited Review Program to provide a process for expedited permit application review for entities applying for an air construction permit. During the pilot period, the Department is allowed to collect additional fees to adjust staffing levels to accommodate the demand for expedited review. Applications that do not request expedited review underthis program will be reviewed in accordance with the normal regulatory timeframes on a first received, first reviewed basis. Goal The goal is to have a project reviewed by the deadlines specified below for Air Quality Construction Permit activities: Expedited Review Time Frames Permit Type Required Regulatory Issuance Dates* Minor Source Construction Permit 90 days Synthetic Minor Construction Permit** 90 days Prevention of Significant Deterioration (PSD)** Not impacting a Class I Area (no Class I modeling 270 days required) Prevention of Significant Deterioration (PSD)** Impacting a Class I Area (Class I modeling is required) 270 days Expedited Review Issuance Dates* 30 days 65 days 120 days 150 days Expedited Review Time Frames General Permit Program Permit Type Required Regulatory Issuance Dates* Concrete Minor Source Construction Permit 90 days Relocation Request Asphalt Synthetic Minor Construction Permit 90 days Relocation Request Expedited Review Issuance Dates* 10 days 15 days * All days above are calendar days, but exclude State holidays, and building closure dates due to severe weather or other emergencies. Expedited days for asphalt and concrete also exclude weekends. ** These permits require a 30-day public comment period. The timeframes above include the 30-day public comment period. Pre-Application Meeting: All applicants requesting an expedited PSD construction permit must request and participate in a pre application meeting. Applicants requesting an expedited Synthetic Minor construction permit are highly recommended to request and participate in a pre-application meeting. Applicants requesting an expedited minor construction permit can request a pre-application meeting, if desired. Pre-application meetings for PSD applications must take place at least 90 days prior to submitting a PSD construction permit application. Other pre-application meetings must take place at least 30 days prior to submitting an application requesting expedited review. The Department may request an additional meeting with the applicant during the technical review of the application as needed. June 27, 2007 (Revised January 28, 2013; August 1, 2016) Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00022 Quality Applications: The Department expects the highest of quality in applications that are selected for expedited review. Procedures: 1. The applicant seeking expedited review will indicate interest in participating in this program by completing the provided application form. The construction permit application must be considered administratively complete in order to be considered for the program. DO NOT SEND PAYMENT UNTIL THE APPLCIATION HAS BEEN ACCEPTED INTO THE EXPEDITED PROGRAM. 2. The Division will accept all PSD construction permit projects for expedited review if they are eligible for the program. However, due to limited modeling resources, the Department may limit PSD modeling reviews to one project at a time. The Division will accept all requests for expedited review for new facilities (i.e., greenfield sites). For the purpose of this program, a "new facility" is defined as a stationary source (or group of stationary sources) that will be located on property that is undeveloped or has no industrial activity at the time of permit application submission. For the purpose of this program, expansions to existing facilities are not considered new facilities. The Division currently has four permit sections. A permit section may decide not to accept any requests for expedited review if the section has less than 50% of its permit writer full-staff level or based on the number of already accepted expedited projects. 3. The applicant will be notified of selection for expedited review by phone within five business days by the expedited review staff. Once contacted, the applicant must verbally accept or reject their entry into the program. If the Department is not able to get in touch with the applicant, that project will be passed over and the normal regulatory timeframes will apply. The applicant must provide multiple phone numbers so he/she can be contacted easily. Individuals should not call the Department to determine if their project was selected for expedited review. 4. The expedited review timeframes specified in the table above will not begin until the applicant has been contacted and he/she has accepted their entry into the program. If the applicant at this point decides not to be considered for expedited review, a letter must be emailed to the expedited review staff member immediately requesting that the project not be considered for expedited review. 5. The applicant must pay the expedited review fee within five business days of verbally accepting entry into the program. The expedited review fee may be paid by check, credit card, or electronic check. Checks must be made payable to S.C. DHEC. If the expedited review fee is not received by the specified deadline above, the project will no longer qualify for expedited review and will be reviewed in accordance with the normal regulatory timeframes. 6. Projects selected for the expedited review program in the eight coastal counties must comply with the necessary S.C. DHEC - Office of Ocean and Coastal Resource Management (OCRM) "Coastal Zone Consistency Certification"* review and public notice requirements. 7. The review staff will only review the application that was submitted unless the Department requests a modified application. 8. During the technical review of the permit application, staff may request clarifications or additional information needed to complete the review. The days needed to submit additional information to the Department will not be included in the timeframes listed in the table above. The review clock will stop when the staff makes a written (via letter or e-mail) request to the applicant. The Department will specify a deadline to submit the additional information. The review clock will restart when the information requested is received by the Department. 9. In most cases, the expedited review permit application will be reviewed by the permit writer currently assigned to that facility, county, or specialty category. This will allow staff that are more familiar with the facility or facility type to work on the project and issue the permit quicker. Other projects the permit writer has will be re-assigned to other staff as needed within the section or division. June 27, 2007 (Revised January 28, 2013; August 1, 2016) Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00023 Additional staff will be hired to ensure other projects being reviewed under the normal review timeframes are continued to be issued in a timely manner. * "Coastal Zone Consistency Certification": Before any state or federal permit can be issued for a project in the Coastal Zone, S.C. DHEC-OCRM must review the project for consistency with the Coastal Zone Management Plan. This certification is required of any project taking place in the eight coastal counties: Beaufort, Berkeley, Charleston, Colleton, Dorchester, Georgetown, Horry and Jasper. Facilities located in any of these eight coastal counties, must submit a copy of this Expedited Review Request along with the appropriate Construction Permit Application Forms to: John Cox CZC Section Coordinator S.C. DHEC OCRM Charleston 1362 McMillan Ave., Suite 400 Charleston, SC 29405 E lig ib ility All minor source, synthetic minor, and PSD construction projects, except as outlined below, will be eligible for expedited review. The following construction permits are not eligible for expedited review, or may no longer be eligible for expedited review: 1. A construction project that is subject to the Non-attainment New Source Review (NSR) requirements is not eligible for expedited review. 2. If an adverse comment relating to the proposed expedited review project is received from the public, the Department reserves the right to determine if the project will continue to be eligible for expedited review depending upon the nature of the comment received. If the Department receives a request for a public hearing related to a proposed expedited review project and the Department decides to grant the request, the review clock will stop for up to 60 days to schedule and notify the public of the hearing and to respond to all comments received during the public comment period and hearing. 3. The Department reserves the right to deny an applicant's request for expedited review if past projects at the facility (or a similar project at another facility) have received adverse public comments. 4. The Department reserves the right to deny an applicant's request for expedited review if the facility has had a recent Air Quality enforcement action taken against them by the Department. 5. When an applicant does not submit additional information requested in item 8 above by the deadline specified by the Department, that application will no longer be eligible for expedited review. The Department may grant the applicant an extension to submit additional information upon request. 6. An applicant that has failed to pay fees or fines owed to the Department is not eligible for expedited review. 7. Applicants (facilities or consultants) that submit insufficient permit applications more than once may not be eligible for participation in this program for a period of one year. Insufficiencies would include, but are not limited to, applications that are not high in quality; are incomplete; or fail to address information discussed during the pre-application meeting; and applicants that fail to submit requested additional information by the requested deadline, or fail to submit fee payment on time. Fees The expedited review fee is in addition to the normal annual air emission fees. The fees are as follows: Expedited Review Fees Permit Type Minor Source Construction Permit Expedited Review Fee*** 53.000 June 27, 2007 (Revised January 28, 2013; August 1, 2016) Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00024 Expedited Review Fees Permit Type Synthetic Minor Construction Permit Prevention of Significant Deterioration (PSD) Not impacting a Class I Area Prevention of Significant Deterioration (PSD) Impacting a Class I Area Expedited Review Fee1* ' $4,000 $20,000 $25,000 Expedited Review Fees General Permit Program Permit Type Concrete Minor Source Construction Permit Relocation Request Asphalt Synthetic Minor Construction Permit Relocation Request Expedited Review Fee*'1 $1,500 $3,500 *** The expedited review fee may be periodically reviewed and adjusted (increased or decreased) to ensure the Department has the resources to adequately fund the program. June 27, 2007 (Revised January 28, 2013; August 1, 2016) Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00025 May 13, 2&16 SEPA Submitted via http://www.regiiIiitions.gov Pocket ID Number EPA-HQ-OEM-2015-0725 FRL-9940-94-OLEM; RIN 205O-AG82 CKRC Comments on the March 14, 2916 Proposed Rale: Accidental Release Prevention Remaireroenfe: Risk Management Programs Under the Cleat Air Act Pear Sir/Madairi: The Cement Kiln Recycling Coalition (CKRC) is a national trade association representing cement manufacturers that use hazardous waste and other secondary materials as alternative fuels and raw materials in cement kilns. Our membership also includes companies that, collect process, and manage secondary materials and companies that provide services to the industry. CKRC appreciates this opportunity to comment on EPA's Proposed Rule; Accidental Release Prevention .Requirements: Risk Management Programs Under the Clean Air Act (Docket ID: EPA-HQ-OEM2015-0725) (81 FR 13638, March 14, 2016). The following provides comments on selected sections of the Proposed Rule: U Revisions to Incident Investigation Requirements (411 CFR 68.611 and 68,81) EPA is proposing to require ail facilities with Program 2 and 3 processes to conduct a root cause analysts as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted In a catastrophic release (he., a near-miss).*1 These requirements are to be codified at 40 CFR Parts 68.60 and 68.81. EPA is also proposing to require that incident investigations be performed even if the process involving the regulated substance is destroyed or decommissioned following, or as the result of, the incident Finally, EPA is requiring that an incident investigation be perforated prior to any de-registration of a process or stationary source that is no longer subject to the RMP Rule and that the accident be reported to EPA under the requirements of 68.42. CKRC generally supports the requirement to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release. However, we do not believe that the requirement to perform the incident 181 FR13640 1 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00026 investigation "including when the affected process is decommissioned or destroyed following, or as a result of. an incident" is warranted. We also do not believe that the requirement to submit the accident information under 68.42 for such instances is necessary to enhance the RMP program structure or to provide information to the former regulated facility which it can rely on to improve its safety performance. The performance of an incident investigation on a process that will no longer operate, and the revision of the RMP registration on file with EPA to include the accident, only to immediately withdraw the RMP registration will result in the preparation of paperwork at an undue cost, with little or no benefit to the public or the regulated community. 2.0 Revisions to the Compliance Audit Provisions (41) CPU Parts 68,58, 88,59, 88,79, and 68,80) 2.1 Third Party Compliance Audits: As detailed in the preamble to the proposed rale, EPA asserts that "in some eases, self-auditing may be insufficient to prevent accidents, determine compliance with the RMP rule's prevention program requirements, and ensure safe operation.''*2 Therefore, EPA is proposing to require regulated facilities with Program 2 and 3 processes to contract with an independent third-party to perforin a compliance audit under the following circumstances: After the facility has a release meeting the criteria in Section 68.42(a) from a covered process, or When an implementing agency requires such third party audit as a result of non-compliance with Subparts C or D of Part 68, EPA is also proposing at 68.59(b)(l)(i) through (iv) and 68.80(b)(! XO through (iv), certain "qualifications" for "third party auditors." Specifically, these Sections propose that third party auditors be; Knowledgeable with the requirements o f part 68; Experienced with the facility type and processes being audited and the applicable recognized and generally accepted good engineering practices (RAGAGEP); Trained or certified in proper auditing techniques; and Be a licensed Professional Engineer (PE), or include a licensed PE on the audit team. CKRC does not believe that third party audits should be required under the revised RMP regulations. While we believe that there may be circumstances where smaller owner/operators may not have the expertise to perform such compliance audits, larger companies, with more substantial environmental resources and experienced environmental/safety personnel may, in fact employ personnel that are tire most qualified to perform such compliance audits. 281 FR13654 2 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00027 As detailed above, EPA has proposed specific "qualifications" for third party auditors. CKRC does not object to these "qualifications" for personnel involved in performing compliance audits that, are triggered by accidents meeting the criteria in Section 68.42(a) or when required by the implementing agency as a result of significant non-compliance. However, we do believe that internal company personnel who meet these criteria are equally qualified to perform these audits. Site personnel frequently represent personnel that are most familiar with the subject RMP process and its applicability under the RMP regulations. Therefore, CKRC requests that the requirement that compliance audits triggered by the criteria detailed above be performed by "'third parties" he removed from the final rule. In addition, the preamble to the proposed rule indicates that EPA is concerned about facilities with poor compliance histories. CKRC does not believe that the occurrence of a regulated accident is necessarily an indicator of a poor compliance program. Therefore, in the event that EPA believes that third party audits are beneficial, we request that third party audits be required only under the criteria of 68.58(f)(2) and 68.79(f)(2) (i.e., at the request of the implementing agency due to significant non-compliance), and not simply by the occurrence of an accidental release meeting the criteria in Section 68.42(a). 2.2 Independence and Impartiality Requirementsfor Third Pari Audiis: Notwithstanding our position that third party audits are inappropriate, CKRC also has strong objections to the third party audit "Independence and Impartiality Requirements" proposed at 40 CF.R Parts 68.58(h)(2) and'"68.80(b)(2). Specifically, these sections require that the auditor/audit team shall: Ah Act impartially when performing all activities under this section; (ii) Receive no financial benefit from the outcome of the audit, apart from payment: for the auditing services; (id) Not have conducted past research, development, design, construction services, or consulting for the owner or operator within the last 3 years. For purposes of this requirement, consulting does not include performing or participating in third-party audits pursuant to 68,59 or 68.86; (iv) Not: provide other business or consulting services to the owner or operator, including advice or assistance to implement the findings or recommendations in an audit report, for a period of at least 3 years following submission of the final audit report; (v) Ensure that: all personnel involved in the audit sign arid date the conflict of interest statement in 6,59(e)(I )(v); and (vi) Ensure that all personnel involved in the audit do not accept future employment with the owner or operator ofthe stationary source for a period of at least 3 years following submission of the final audit report. For purposes of this requirement, employment does not: include performing or participating in third-party audits pursuant to 68.59 or 68,80." EPA appears to be attempting to eliminate potential bias on the pari of the third party audit team. CKRC believes that this concern is unfounded, and several of the resulting "independence and impartiality requirements" detailed above are unnecessary to ensure that compliance audits are performed in a professional and unbiased manner. In addition, these "independence and3 3 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00028 impartiality requirements" may actually result in less qualified individuals performing the compliance audits for the reasons set forth below, First, and most importantly, compliance audits under these circumstances are most effectively performed by personnel who are most familiar with the regulated process and the applicable RMP requirements for that process. Many facilities subject to the RMP regulations utilize consulting linns that perform a variety of environmental/safety services for that facility, that industry, and other industries. It is these consultants that are most familiar with the regulated processes and are most capable o f performing a thorough and complete audit of the facility's RMP compliance status. Secondly, many facilities already utilize third parties to perform compliance audits as required under the existing RMP regulations. We are not aware of any systemic cases of bias or fraudulent audits being performed by third parties so that they may obtain further compensation or work from the regulated community. The proposed regulations already require that the third party be a "licensed Professional Engineer (PE) or include a licensed PE on the audit team." The purpose of this requirement is to maintain the integrity of the audit process under the ethical and professional standards of the auditors PE license. In fact, the first fundamental cannon of ethics for a PE is: "Engineers shall hold paramount the safety, health, and welfare of the public."3 The qualifications detailed in Sections (in) through (vi) are therefore unwarranted. Finally, the existing RMP and PSM regulations require extensive qualification and training requirements for new contractors and consultants (see the RMP Program 3 "Contractor" requirements at 68.87 and the OSEIA PSM "Contractor" requirements at 29 CFR 1910.119(h)). Additionally, cement companies such, as those represented by CKR.C are also required to comply with the MSBA contractor training requirements at 30 CFR Part 46. Requiring owner/operators to Identity, qualify, and train new consultants In the event a third party audit Is required can be burdensome and can incur significant cost to the regulated community. For these reasons, we do not believe that the third party "Independence and Impartiality" requirements at 68.58(h)(2)(Iii), (iv), (v),(vi) and 8.80(b)(2)(ii)f (iv), (v),(vi) are necessary or warranted and we request that they be removed from the final regulation. 3.0 Revisions to the Requirements for Emergency Response Program Coordination with Local Responders EPA is proposing to require facilities with Program 2 or 3 processes to coordinate with the local emergency response agencies at least once a year to ensure that resources and capabilities are in place to respond to an accidental release of a regulated substance. CKR.C is in general support of such a requirement. However, it should be noted that R.CRApermitted facilities pose a unique situation, because they are already required to coordinate their emergency response activities (i.e,, contingency plans) with the local emergency responders. Therefore, we believe that the proposed revisions to the RMP regulations requiring this annual coordination is duplicative for RCRA facilities. CKRC requests that the proposed RMP regulations exempt "RCRA-pemuited facilities for whom the regulated RMP process Is covered*4 ' http://www.nspe.oirg/resources/ethics/code'ethics#sthash.uX6dbPle.dpuf 4 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00029 by the RCRA permit" from the annual coordination requirements of 68.93(a),4 4i> Proposed Emergency .Responder Notification Exercises: EPA. is proposing to revise the emergency response preparedness requirements by requiring facilities with Program 2 or 3 processes to conduct annual notification exercises to ensure that their emergency contact Information is accurate and complete. CKRC agrees that it is important to maintain accurate and complete contact information for purposes of notifying emergency responders in the event of an emergency. However, we do not believe that the "notification exercises" proposed at 68.96(a) and as described in the proposed rule preamble are warranted. Specifically, the preamble to the proposed rule provides an expectation that an actual "test" notification be made and describes these notification exercises as follows: "The purpose ofthese rmtifi.caii.ons is to ensure facility personnel understand, how to initiate the notification system and to test the emergency contact information to ensure it is up-todate. As part of the notification exercise, the individual making the notifications should clearly indicate that the call is part of an exercise to test the notification system. The owner or operator would be required to document these notification exercises and maintain a written record of each exercise conducted for a period of five years. The owner or operator would also be required to provide copies of the report to local response officials, and to make the report available to the public in accordance with 68.205 and 68.210." Again, while CKRC agrees that confirming contact information is current and accurate is appropriate, we believe that requiring the performance o f an actual, "notification exercise" would represent an unnecessary burden on the regulated community as well as the responding organizations. Local responding agencies are typically required to maintain a response program, that details the procedures for coordinating emergency response. Calling these agencies (in many7 cases, calling 911) as part: of a "test" notification would be waste of resources associated with these agencies. Finally, as discussed above, RCRA-permitted facilities are already required to coordinate their emergency response activities (Le., contingency plans) with the local emergency responders. This includes the requirement to maintain current coordination agreements with oca! responding agencies. Therefore, we believe that the proposed requirement to perform emergency notification exercises is duplicative for these RCRA facilities. In the event that EPA maintains these notification exercise requirements in the rule, CKRC requests that tire proposed RMP regulations exempt "RCRA-permitted facilities for whom, the regulated RMP process is covered by the RCRA permit'' from the annual notification exercise requirements of 68,96(a).45 4"Each agency shall avoid regulations that: are inconsistent incompatible, or duplicative with its other regulations or those of other Federal agencies.'' E.O. 1.2866,58 .FR 51735, Oct. 4, 1993. 5 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00030 5J Proposed Field and Table-top Emergency Response Drills; EPA is proposing to require that all facilities subject to the emergency response program requirements of Subpart E of the rule conduct a full field exercise at least once every five years and one tabletop exercise annually In other years. CKRC is in general support of such a requirement. However, it should be noted that RCRApermitted facilities already perform such field exercises under the contingency plan requirements of 40 CFR Part 264. Therefore, we believe that the proposed revisions to the RMP regulations requiring these field and tabletop drills impose duplicative requirements for these RCRA facilities. CKRC requests that the proposed RMP regulations exempt "RCRA-permitted facilities for whom the regulated RMP process is covered by the RCRA permit" from the five-year field exercises and annual table-top exercises. 6J Proposed In formation Availability' Requirements; 6.1 LEPC Information: EPA is proposing to require that certain RMP and chemical hazard information be made available to the LEPC upon, request. This information is detailed at proposed 68,205. While CKRC does not object to providing the majority of the chemical hazard information detailed at 68.205(b) to the LEPC, we do have significant concerns with the distribution of information associated with the facility's compliance audits and incident investigation reports. Specifically, compliance audit and incident investigation, reports may contain detailed process information that may be used by unauthorized persons in nefarious ways. For instance, information identified in the root cause portion of an incident investigation could expose potential "soft-spots" of the regulated process or "target areas" tor outside forces to exploit. In response to concerns of vandalism, sabotage, and even terrorist attacks at RMP-regulated sites, EPA previously removed several public information requirements associated with the original RMP regulations published in 1999. For these same reasons, CKRC requests that either the compliance audits ao.d Incident investigation, reports be removed from 68.205(b), or this section of the regulation, be revised to allow the local LEPC to review these documents at the regulatedfacility, without taking the documents off-site. 6.2 Public Information; EPA is proposing to require that certain RMP and chemical hazard information be made available to the public in a readily available manner. EPA has proposed the use of company web-sites or information repositories such, as a local library or maintaining the information at the facility for public review.6 6 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00031 We also note that under EPCRA, facilities may be required to submit Tier II forms. The Tier IT form is Intended to provide State and local officials and the public with specific information on hazardous chemicals present at facilities. CKRC does not generally object to making this information available to the public. However, we believe that the RM.P requirements should utilize existing data submission requirements and repositories to avoid duplicative efforts wherever possible. Therefore, we believe that this information can be easily made part of the EPA's ECHO database. The use of the existing ECHO database would provide the public with, a "one-stop" web interface and provide consistency in the presentation of the information to the public and surrounding community. CKRC appreciates the opportunity to provide input on EPA's Proposed Rule. Should you have questions or need additional, information, please feel free to contact me. Respectfully, Michelle C. Lusk Executive Director, CKRC 703-624-4513 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00118901-00032