On August 29 EPA closed its comment period for its limited reconsideration on an obscure ferroalloy regulation. To oversimplify, ferroalloy production is essential to make steel and we only have two of these companies in the U. S. So their NESHAP is not exactly the talk of the town.
What was noteworthy in that NESHAP rule is that EPA pushed another undemonstrated technology (a camera) to read opacity (air pollution readings) for rooftops at manufacturing facilities. Cameras can be a good thing if they are more accurate and more affordable than the prevailing system. Unfortunately this camera technology displaces Method 9’s option which has been used for decades and the camera is not yet accurate or widely available. In fact, only two states have certified camera users. And the state of Virginia’s DEQ investigated it and found serious problems with the camera’s accuracy. And, oh did I mention–the camera was not designed to read rooftop vents. It was designed for reading smokestacks. Not a small detail.
Why does this matter? In the EPA’s July reconsideration announcement they made it clear that they plan to use this same new camera device for all industries for opacity testing. Yet they did not announce the plan in the Federal Register calling for all industries to comment. They held two hearings but they were down at Research Triangle Park. One would have had to have read the ferroalloy rulemakling announcements to know that going to the hearing was important. Most of us don’t read all the NESHAPs for other industries (often hundreds of pages) or the footnotes to look for the needle in a haystack. But perhaps one should.
EPA hid their plan inside the notice of an obscure NESHAP affecting the only two manganese manufacturing companies in the U. S. It is hard to imagine a rulemaking that could affect more industries while appearing to be incredibly unimportant and simply ignored. I almost missed it myself. The process just doesn’t seem right– whether at EPA or IRS or any other agency. The Administrative Procedure Act is supposed to protect us from arbitrary and capricious rulemakings and inability to know what agencies are doing.
How would you feel if you learned your county government hid a new regulation affecting which HVAC system you have to buy for your house in a plumbing code announcement. It just isn’t good government.
Nor does it seem right that the camera that EPA wants industry to use is currently made by only one U. S. company. The Clean Air Act was never designed to make winners and losers in vendors. Would all camera manufacturers have to start reading all NESHAPs to find out if one of their brethren was getting a leg up? Regulatory agencies should not hide the ball.
The current cost for this camera is at least $92,000 per year and so this is not something to shrug and say “hey, this is just the cost of doing bidness”. It is $92,000 per year at a minimum –and in two states where the median household income is roughly $39,000. (At least one of the companies filed comments on Friday saying the annual costs would far exceed $92,000 per year). I am no economist but that annual cost is about the cost of two employees each year in states with high unemployment, high poverty, and lots of folks without good retirement benefits.
I have nothing against the company that makes this camera. I wish them well. I hope one day that camera devices will improve upon Method 9’s limitations. But EPA should not pick a sole source technology vendor when selecting a technology option. They should fully disclose their thinking in the Federal Register with a clear notice about their intent to apply the new way to test for opacity readings to many industries. An agency shouldn’t make us all have to look up what ferroalloys are and read each Federal Register notice or reconsideration notice to make sure we aren’t missing something important for our own industries.
Until the new camera technology is better, more widely sourced (not just from one company), and where the technical problems have been worked out, all industries should be allowed to choose between Method 9 for opacity testing and the new camera. But first EPA should have to make the public announcement in a new proposed rule so all camera manufacturers get a chance at providing the product. Let the Method 9 geeks file comments too. And to be clear–there should be no presumption that the new camera technology is “widely” or “commercially” demonstrated for applications for other industries just because EPA required for two manganese manufacturers. While neither of these companies are small in the classic sense–they are small subsidiaries of international companies making manganese–not exactly a widely discussed industry. The two companies (with about 200 employees each) are located in rural Ohio and West Virginia and frankly not terribly visible to the mainstream regulatory advocates in D. C. (That is not meant to be a slam–just an observation that often industry sectors with only two companies don’t have a lot of sway).
Making steel is important. And so is keeping those manufacturers in the U. S. And, I’d like to see the camera companies eliminate false positives in shadows and tree movement (according to the state of Virginia’s air pollution agency). Maybe the price will come down too.
The EPA is hardly transparent in some recent decisions about technology demonstration. This camera technology demonstration issue at EPA started with the infamous “FrankenMACT” for industrial and commercial boilers (ICI Boiler MACT) . FrankenMACT is the perfect name for it. Think Frankenstein with different body parts. EPA selected from the theoretical pollution control options from different industries for the ICI Boiler MACT about ten years ago and it has been twisted up in court cases for years. That ICI rule affects many tens of thousands of industrial and commercial boilers at factories and power plants. Then it got worse with assumptions about geologic sequestration of CO2 at a power plant being the same thing as CO2 injected for enhanced oil/gas recovery. EPA made the assertion that the technology was demonstrated at power plants but not with one single power plant OPERATING anywhere in the world pulling off the CO2 and injecting it into the ground for 200 year, 500 year or for permanent storage. Nor does EPA seem to have a clue that getting oil or gas out of the ground is different than injecting the CO2 from a 1,000 MW power plant on a 24-7 basis in karst geology or 30 miles from a sole source aquifer. Even the oil industry testified repeatedly and filed comments numerous times that it was not the same.
The best way to evaluate what EPA has attempted on these bad technology choices is to ask yourself this. Would EPA be as open to industry if we suddenly came up with a new pollution camera that was unproven and made by only one company in the United States? If the state of Virginia’s environmental agency said the camera readings had a lot of errors missing actual pollution do you think that the U. S. EPA would still let industry use the technology? I think not.
A copy of the comments by my company are posted at www.theresapughconsulting.com Better yet, take a look at the EPA docket and see what others submitted on Friday.