|Gossman Consulting, Inc|
EPA Regional Variances in the Interpretation and
of the BIF Regulations
Gossman Consulting, Inc.
66 Sexton's Drive
Xenia, Ohio 45385
Presented at the AWMA International Specialty Conference on Waste Combustion in Boilers and Industrial Furnaces April, 1994
At the 1993 A&WMA BIF Conference, the highlights of a recently completed EPA "Roundtable" were presented. One of the issues identified to be addressed was the lack of consistency between regions regarding BIF interpretation and implementation. Here it is a year later. How have things developed?
This paper compares feedback from six EPA regions. While focusing on Certification of Compliance (COC) feedback, it also includes some Certification of Precompliance (COP) feedback information as well. The comparison has revealed findings that may be suprising.
At the 1993 A&WMA BIF Conference, the highlights of what was then a recently completed EPA "Roundtable" were presented. Even though the identified issues appeared to be heavily weighted towards "environmental" groups, one of the industry issues identified was the lack of consistency between regions regarding BIF interpretation and implementation.
This paper was begun to investigate Regional BIF interpretation and implementation consistency issues. However, as the data was collected, it became increasingly clear that, from an industry standpoint, there were serious problems with EPA's feedback mechanism. In short, the only official mechanism, compelling EPA feedback, is the enforcement action. The only reason feedback is offered then is that the accused has a right to know what they are being charged with. This paper examines how industry is shooting at a moving target about which even EPA appears to be unclear.
TIMING OF SUBMITTAL REVIEWS AND FEEDBACK, ...IF ANY
An issue related to consistency has to do with timing of submittal reviews and feedback. Virtually every BIF cement plant has experienced delayed/untimely reviews of submitted regulatory documents. Simply put, the timing of feedback is such that the next phase of regulatory compliance/reporting cannot benefit from the feedback. Gossman Consulting, Inc. worked directly with seven cement plants during the BIF testing Summer of '92, four of which we served as primary contractor. In every case where GCI served as primary contractor, the Certification of Compliance test burn plan was submitted as a Trial Burn /Certification of Compliance (TB/COC) Trial Burn Plan (TBP) and Quality Assurance Project Plan (QAPP). Each and every one of these plans were delivered to the appropriate regional agency at least 30 days in advance of the planned Certification and Compliance test burn (266.103(c)(2)). In one case a regional representative sat down with us, heard an overview of the test burn plan, and provided informal feed back. The ultimate intent of the TB/COC strategy was to conduct the COC test burn in such a fashion as to render the resulting data readily acceptable as data in lieu of a trial burn for the Part B permit application.
The TB/COC test burn planning started in the Fall of 1991 so test burns could be conducted in the Spring/early Summer in order to meet the next written submittal deadline of August 21, 1992. Precompliance written submittals had been previously required and submitted by August 21, 1991. Very few facilities had received feedback from any of the EPA regional offices on these submittals until late February of 1992, approximately six months after the submittal deadline. An EPA question and answer (Q & A) document, intended to clarify the many BIF regulation questions, had not appeared as promised. It is of significant interest to note that during this time period, Regional field authorities regularly recommended contacting Washington DC, for answers to BIF questions, as they had admittedly received little or no guidance on the issues. Unfortunately, the Q & A document has still not appeared three years later.
In many cases, the TB/COC test plans were nearly ready for submittal, or had already been submitted. Interestingly enough, these Precompliance NODS/NOVS arrived just about the time of the 1992 A&WMA BIF conference, literally requiring presenters to change their talks, in some cases, at the last possible minute(1). It is now two and one half years since the initial Certification of Precompliance (COP) in August, 1991, and one and one half years since the Certification of Compliance submittals in August, 1992. Many kilns have still not received feed back on their Certification of Compliance submittals or responses to the original Certification of Precompliance NODS/NOVS. In fact, one cement facility only just recently received feedback on the TB/COC test plan that was submitted in January of 1992, a full two years later. The COC report, containing data gathered from using this TB/COC test burn plan, had been submitted by the August 21, 1992 submission deadline.
It is easy to understand how delays in EPA responses to COP submittals resulted in COC submittals that did not incorporate "clarifications" resulting from any delayed COP discussions/written feedback. Consequently, testing performed for Certification of Compliance did not have the benefit of test burn plan review and feedback from the EPA. This compounded delayed effect perpetuated unclarified regulatory interpretation differences. EPA did publish a Technical Implementation Document (TID) in late March, 1992, but was not in time to significantly impact most of the COC test burns. It should be noted however that it was available to EPA officials and EPA contractors who later reviewed the COC reports. It should also be noted that items in the TID later proved to be contradictory to BIF language. In one instance, an EPA official told 1992 A&WMA attendees that Ba and Ag could not be omitted from consideration just because allowed emissions exceeded BIF particulate standards. The TID contradicted this as well. To add to the confusion, enforcement actions were initiated without the benefit of clarification in the COP or COC process. One enforcement action, that has recently been settled, started out as a multi-million dollar enforcement action (largely based upon misunderstandings and regulatory misinterpretations), then ended up being settled out of court for around $300,000, over a 90% reduction. A tremendous amount of time and money was expended in educating the EPA on their own regulations. It is not out of the realm of likelihood that the fine could have been reduced to around $100,000 had the action gone to court.
While this paper reveals inconsistencies between the Regions, there unfortunately has been a tremendous amount of consistency between EPA Regions in terms of not providing feedback on regulatory submittals in time to affect the next regulatory submittal. This has unfortunately led to a snowball effect of regulatory misunderstanding and misinterpretation. It borders on tragic that three years later the regulations are still not entirely clear.
This consistency in not providing timely feedback and, in some cases not providing feedback at all, led Gossman Consulting, Inc. to contact a number of the EPA regions that have BIFs. Each Regional representative explained their own "policy" and then explained that there was variations among the Regions. EPA Headquarters does not have a uniform policy which they recommend. One Region would only provide copies of facility inspections through the Freedom of Information Act (FOIA), even to the inspected facility. While several Regions thought that the inspected facility should receive a copy of an inspection report as a common courtesy, no Region contacted had a hard fast rule as to how long that should take. Conversations with many regulated BIFs has revealed that phone requests rather than FOIAs are often used to obtain desired copies of documents, however, it usually takes numerous phone calls. In short, there does not appear to be any mechanism that compels Regional feedback. Unfortunately, this means that a facility can make good faith attempts to comply with applicable regulations, in this case BIF, and never officially hear back from the appropriate Region until an enforcement action is taken. This is exactly what happened in the multi-million dollar enforcement action cited earlier in this paper.
REGIONAL FEEDBACK INCIDENCES
A Region III cement kiln BIF submitted a COP prior to 8-21-91. After an agency request for supporting data, the BIF received a notice of violation (NOV). At this point, a meeting was held with the Agency, and as a result the COP was revised for total metals input. The COC test plan was reviewed as part of this process, with the intent of testing one unit representing three units.
A subsequent 1993 COC test plan was reviewed by Region III and approval received to test only one unit as representative of the two identical units. A third unit was tested separately. At the end of 1992, a $3.3 million enforcement action was issued, primarily based upon allegations of CKD non-compliance based upon the first COP. This enforcement action has recently been settled for approximately $200,000.
At least three Region IV BIFs submitted their COPs by the August 21, 1991 deadline. In one case, a written NOV was issued concerning the stack modeling. Readers may remember that Region IV led the charge in the enforcement action arena, and the one facility that had received a written NOV concerning the stack modeling was issued a $1.8 million enforcement action on September 3, 1992(2). The two major allegations in this enforcement action being related to the waste analysis plan (WAP) and CKD compliance. This enforcement action was ultimately settled for $594,000 in late September, 1993. It should be noted that this particular enforcement action was against a BIF that had a sale pending situation which likely was a factor in not only the timing of the settlement, but the dollar amount as well.
A second of the three Region IV BIFs was included in the September 28, 1993 (Black Tuesday) enforcement action initiative announcement to the tune of $838,850(3). With the exception of a facility requested TBP/COC meeting prior to conducting the COC test burn, this facility had not received any formal feedback on either the COP or COC submittals until they learned of the enforcement action.
Two Region V cement kiln BIFs submitted their COPs and COCs by the required submittal deadlines and, to date, have never received any type of formal feedback on either submittal. Their good faith compliance efforts, with no formal feedback mechanism, were rewarded with a multi-million dollar and $619,800 enforcement actions announced on Black Tuesday. As mentioned previously, the multi-million dollar enforcement action has been settled for approximately $300,000. The most significant allegation involving wasted CKD ($3.1 million) was reduced to zero. The $619,800 enforcement action settlement is still pending.
A Region VI cement kiln BIF had the benefit of running dialogue concerning their COP submittal and their COC test burn plan and ultimately their COC written submittal. Some of this dialogue was effected through the Region and some through the state. The test burn plan was submitted in early 1992. Review of this test burn plan resulted in the submission of a revised Certification of Precompliance prior to receiving verbal approval of the COC test burn plan. Unfortunately, the COC test burn was complicated by a BIF inspection conducted concurrently with the test burn. The BIF inspection was part of a Section 3007 information request. Nonetheless, the written COC report was submitted by the August deadline. The facility also submitted a FOIA request for the contents of their compliance file, only to be told that their file was not available as it was on somebody's desk under review. Ultimately, it was decided that there was no reason to pursue an enforcement action against the BIF, however the FOIA compliance file content request was not honored until after the determination had been made not to pursue an enforcement action.
At least two Region VII cement kiln BIFs submitted their COPs by the August 21, 1991 submittal deadline. Gossman Consulting, Inc. worked very closely with both facilities in regards to submitting their TBP/COC plans for an April/May test burn time table. The plans were in final draft when Region VII issued Certification of Precompliance notice of deficiencies (NODS). Given that most EPA Regions have yet to issue any type of formal feedback on COP submittals, Region VII deserves some credit here. The timeliness of the feedback, however, was not sufficient to provide meaningful information exchange and significant clarification before time to conduct the COC test burn. One facility received feedback on February 28, 1992 and the other facility received feedback on March 6, 1992. The first facility to receive feedback conducted their COC test the week of April 5, 1992 and the second facility conducted their COC test the week of April 24, 1992. Region VII did conduct some joint BIF meetings where it was learned that the Region considered 12 hours of conditioning as sufficient for the cement kiln to be considered at equilibrium for the COC test. Today, even that information is being challenged by Region VII by way of Section 3007 information requests. (A Region VII official offered clarification following this resentation, considering this information request a non-issue. It was, however, also learned at the conference that the facility in question had not been informed that this was no longer an issue.) Region VII also deserves credit for providing written COC feedback comments in the Fall of 1993, albeit a full year after the August 21, 1992 submittal deadline. In essence, a Region VII BIF could be accused of non-compliance for one year just because it took that long for the Region to respond.
The only cement kiln BIF in Region IX submitted their COP by August 21, 1991, their revised Part B renewal on December 24, 1991 and their COC report on August 21, 1992. With the exception of requested meetings concerning BIF compliance, resulting in the submission of a revised COP in May of 1993, no formal feedback was received on BIF compliance until a Section 3008 noncompliance warning letter was issued on November 9, 1993. The overriding compliance issue at this facility, which seems to be overshadowing BIF compliance issues, involves a permit signature. Because it is located in California, it is safe to say that this facility has received the greatest and most intense regulatory scrutiny of any BIF in the United States and has been receiving such scrutiny since 1982, long before BIF was promulgated.
SIGNIFICANT CURRENT INCONSISTENCIES
This section is entitled significant current inconsistencies. A more accurate title might reflect how EPA appears to be going back on their own written instructions/agreements. The following are several examples.
One Region V BIF obtained a written hydrocarbon extension of 60 days and was further instructed, in this same extension letter, to work with the Regional permitting group on the issue. The Region V BIF complied with the conditions and terms set forth in the extension letter. Believing they were under an approved extension while Regional Permitting officials took approximately a year to review their situation. This same Region V BIF has now been informed by the enforcement group that they may have been out of compliance for that one year period beyond the original 60 day written extension. The permitting group delay was explained to the enforcement officials, however, the Region V BIF was told that permitting was one area and enforcement was another. It was explained that enforcement is charged with enforcing the letter of the law and the letter of law indicated they did not have an extension beyond 60 days. Consequently, they may be in violation for the year that they were in limbo even though Regional permitting authorities did not get back to them. There are currently ongoing discussions.
Another Region V enforcement/permitting issue concerns the Interim Final Rule concerning F039(4). This interim final rule clearly states, "...the Agency is today staying those limits [health based limits for nonmetal constituents in waste-derived residues that must be met in order to qualify for the Bevill exemption under the test in §266.112(b)(2)] provided that owners and operators of such Bevill devices comply with land disposal restriction standards for the hazardous constituents that are reasonably expected to be present in these residues." Obviously, if a Part 261 Appendix VIII constituent is not on the F039 list, then there is no need to monitor for that constituent. However, a Region V inspector has let it be known that testing for a Part 261 Appendix VIII compound is the first requirement and only if you have met the testing requirement does one need to worry about whether or not it has an enforceable limit or not. Numerous telephone calls to permitting officials in Washington DC clearly indicates that a Part 261 Appendix VIII constituent must be on the F039 list in order to be monitored. The Region V inspector has pointed out that permitting opinions are one thing and enforcement opinions are another. No doubt a test case will ultimately decide this issue.
As mentioned previously, Region VII BIFs were told, in a joint meeting with appropriate Regional officials, that 12 hours of kiln conditioning was sufficient to establish equilibrium for the COC test. Many kilns took this at face value and complied with the 12 hour conditioning directive. It has come to light recently that Region VII has now challenged at least one BIF that complied with the 12 hour conditioning directive as to whether or not 12 hours was in fact sufficient. While it would seem that the Region VII BIF stands on firm ground on this issue, in the world of BIF compliance, this is not a sure thing.
In addition to the Region V F039 permitting vs enforcement issue, two other cases clearly demonstrating lack of communication between permitting and enforcement and even simply within enforcement have occurred in Region III and V. Each of these cases involves multi-million dollar enforcement actions against BIFs. In both cases, there was great fanfare in announcing the enforcement actions, immediately causing tremendous negative public relations and potentially destroying credibility for the accused BIFs. In Region III, CKD compliance activities were not communicated from the permitting group to the enforcement group, nor did enforcement seek updated information from permitting. The aforementioned enforcement action resulted. In a clear indication of the absurd and over zealous nature of the original enforcement action, the original multi-million dollar charge was settled for approximately $200,000. In the case of the Region V, BIF enforcement inspection personnel were actually in possession of data demonstrating compliance, but those writing the enforcement action apparently did not seek counsel of those in possession of the data and a multi-million dollar enforcement action resulted. That one issue accounted for approximately 80% of the enforcement action. That issue has now been dropped from consideration, but again tremendous negative publicity resulted, potentially destroying credibility for the accused BIF. Also, in this case it occurred in a national forum.
The original intent of this paper was to look at consistencies between EPA Regions, regarding interpretation and implementation of BIF. It was an EPA "Roundtable" issue raised a year ago (April, 1993) at the A&WMA conference and was one of the few industry oriented issues that made the list. It certainly bore looking into any progress in the past year.
What has been revealed through the composition of this paper follows:
The only consistent official compliance feedback mechanism for the EPA is unfortunately the enforcement action. In some cases, the regulated/inspected facility must resort to a Freedom of Information Act request to obtain copies of their own facility inspection reports. Industry needs a legally enforceable timely feedback mechanism. EPA has repeatedly failed to provide timely feedback on Certification of Precompliance and Certification of Compliance submittals. Little guidance, and on some issues no guidance, was provided on the complex boiler and industrial furnace regulations before the first regulatory deadline. Logic would dictate timely EPA feedback on the Certification of Precompliance submittals, in order to insure clarified Certification of Compliance issues. For the most part this did not happen.
EPA does not appear to have adequate communications either between their own internal groups such as permitting and enforcement and/or in some cases even within the same group. Witness two multi-million dollar enforcement actions, announced with great fanfare, resulting in tremendous negative publicity for the accused BIFs and then final settlement equalling approximately 8% in one case and 3% in another. In both of these cases, defamation of character suits would seem justifiable.
In some cases, BIFs cannot give much credence to what they are told by the EPA. Consider the Region VII challenge of their own 12 hour conditioning for equilibrium directive issued to BIFs for their Certification of Compliance test burns. Consider also the Region V BIF that was issued a 60 day hydrocarbon extension and told to work with the permitting group for further resolution, which they did, only to be told by enforcement that even though permitting prolonged their situation for approximately one year, they may still be out of compliance for that time period.
At this writing, the derived from hazardous waste rule is temporarily back in place, after having been overturned by the courts. A new regulation will be issued "some day". The proposed substitute rule (hazardous waste identification rule, HWIR) has been withdrawn from consideration, at least for the time being. In addition, the CKD report to Congress has clearly demonstrated what we already knew, that CKD is a high volume, low toxicity waste and should not be considered for hazardous waste classification. Unfortunately, the options offered by the EPA, supposedly resulting from the CKD study, clearly indicate that logic and science may not prevail in the case of cement kiln dust regulation. Also, CKRC and some cement partners successfully argued that the Tier III, HC/CO portions of BIF were arbitrary and capricious because they appeared in the final BIF rule without the benefit of required review. The good news was that the Courts agreed with the argument. The bad news is that the Courts remanded Tier III and gave EPA the option of proposing new regulatory revisions or just going with Tier I and Tier II. Discussions are currently underway, but no clear indication has been given by the Agency. Normally, in such cases, regulatory revisions are offered for consideration. Given the current confrontational approach exhibited by Browner's EPA, the resolution of this issue is entirely unclear.
Newspapers and TV all across the country headlined the news of Carol Browner's May 18, 1993 Combustion Strategy. Ultimately, Carol Browner was forced to back off on her May 18, 1993 Combustion Strategy, perhaps more appropriately called "war against combustion of hazardous waste" because she tried to impose regulations that had not received appropriate required public scrutiny. The bottom line seems to be that even though she backed off formally, there appears to be a stealth strategy in place to make the burning of hazardous waste in cement kilns very difficult, but in ways that have nothing to do with protecting public health and safety or the environment. Three years have passed since the Boiler and Industrial Furnace (BIF) rules went into effect, EPA continues to send mixed signals concerning interpretation and implementation of the BIF rules. It is becoming increasingly obvious that EPA may not know what they want; or are, at the very least, not in agreement internally. Consequently, BIFs are still shooting at a moving target. Boilers and industrial furnaces must work hard to crystallize a clear target and demand more than just "common courtesy" feedback on compliance issues whenever the EPA feels obliged to respond. Feedback solely through enforcement actions is unacceptable, gives the regulated community no time for dialogue that can often easily clear up EPA misunderstandings, and flies in the face of the American judicial system by assuming guilt until innocence is proven.
Certificate of Precompliance
Certificate of Compliance
Freedom of Information Act
Air and Waste Management Association, Proceedings of the 1993 A&WMA International Symposium on Waste Combustion in Boilers and Industrial Furnaces, SP-86, Pittsburgh PA, March, 1993.
Environmental Protection Agency, "Burning of Hazardous Waste in Boilers and Industrial Furnaces - Final Rule", Federal Register, Volume 56, No. 35, US Government Printing Office, Washington DC, 1991, pp 7134-7240.
Environmental Protection Agency, Technical Implementation
for EPA's Boiler and Industrial Furnace Regulations, PB92-154 947,
US Government Printing Office, Washington DC, March, 1992.
1. Woodford, J., Gossman D., Gossman R., "Metal Precompliance for Cement Kilns", in Proceedings of the 1992 A&WMA International Symposium on New RCRA Regulations for Industrial Boilers, Furnaces & Incinerators, SP-80, Air and Waste Management Association: Orlando, 1992, pp 93-98.
2. Environmental Protection Agency, Region IV Office of Public Affairs, Atlanta GA, September 3, 1992.
3. Environmental Protection Agency, Press release #R-202, Government Printing Office, Washington DC, September 28, 1993, New Enforcement Actions table pp 1.
4. Environmental Protection Agency, "Burning of Hazardous Waste in Boilers and Industrial Furnaces - Interim Final Rule", Federal Register, Volume 58, No. 215, US Government Printing Office, Washington DC, 1993, pp 59598-59603.