5452775 Environment, District Department of the - Notice of Final Rulemaking - Interstate Transport of Nitrogen Oxides (NOx) Emissions
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DISTRICT DEPARTMENT OF THE ENVIRONMENT
NOTICE OF FINAL RULEMAKING
Interstate Transport of Nitrogen Oxides (NOx) Emissions
The Director of the District Department of the Environment (DDOE), pursuant to the authority set forth in Sections 107(4) and 110 of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code §§ 8-151.07(4) and 8-151.10 (2013 Repl.)), and Mayor’s Order 2006-61, dated June 14, 2006, hereby gives notice of the intent to adopt the following amendments to Chapters 1 (General Rules) and 10 (Nitrogen Oxides Emissions Budget Program) of Title 20 (Environment) of the District of Columbia Municipal Regulations (DCMR).
This rulemaking action regulates the interstate transport of emissions of nitrogen oxides (NOx) from non-electric generating unit (EGU) sources, by repealing 20 DCMR Chapter 10 in its entirety and replacing the chapter with a source-specific NOx emissions cap. Also, one definition and one abbreviation in Chapter 1 are amended.
The proposed regulation was first published in the D.C. Register on July 22, 2011 at 58 DCR 6029. The comment period officially closed on August 22, 2011. Comments were received from the U.S. General Services Administration (GSA). Numerous alternatives were explored after the rulemaking was initially proposed. A second proposed rulemaking was published in the D.C. Register on November 21, 2014 at 61 DCR 012045. No comments were received. The District has decided to proceed with an emissions cap during ozone season to meet federal air quality requirements. These rules were adopted as final on April 20, 2015, and shall become effective on the date of publication of this notice in the District of Columbia Register.
Background
NOx is a precursor to ground-level ozone, a serious threat to human health in the District. The District remains in nonattainment of federal ozone standards. Short-term (1- to 3-hour) and prolonged (6- to 8-hour) exposures to ambient ozone have been linked to a number of adverse health effects, such as irritation of the respiratory system, temporary reduced lung function, aggravated asthma symptoms, and inflammation and damage to lining of the lungs, which may lead to permanent changes in lung tissue and irreversible reductions in lung function. 70 Fed. Reg. 25162, 25169 (May 12, 2005).
The District initially addressed the interstate transport of NOx emissions by adopting the Ozone Transport Commission (OTC) NOx Budget Program. The OTC is comprised of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, the northern counties of Virginia, and the District of Columbia (“the OTC States”). In September of 1994, the OTC states (except for Virginia) agreed to a memorandum of understanding (MOU) to achieve regional emissions reductions of NOx. By signing the MOU, states committed to developing and adopting regulations that would reduce region-wide NOx emissions in 1999 and further reduce emissions in 2003.
The United States Environmental Protection Agency (EPA) promulgated a rule on October 27, 1998, known as the “NOx SIP Call,” requiring twenty-two (22) states and the District to submit state implementation plans (SIPs) that address the regional transport of ground-level ozone. 63 Fed. Reg. 57356 (October 27, 1998). The OTC states finalized a model rule to comply with EPA’s regulation in collaboration with EPA, industry, utilities, and environmental groups. The model rule imposed seasonal limits on NOx emissions and implemented a NOx emissions cap and trade program. Title 20 DCMR §§ 1000 to 1013 incorporated requirements of the OTC’s NOx Budget Program model rule through 2003.
In 2003, EPA began to administer the NOx Budget Trading Program under the NOx SIP Call. The requirements of EPA’s NOx SIP Call[1], intended to replace the OTC NOx Budget Program model rule, were incorporated by reference in 20 DCMR § 1014. The rule was in effect through 2008.
On May 12, 2005, EPA published the Clean Air Interstate Rule (CAIR), which included a finding that twenty-eight (28) States and the District of Columbia contributed significantly to the nonattainment of National Ambient Air Quality Standards (NAAQS) for PM2.5 and/or the eight (8)-hour ozone standard. 70 Fed. Reg. 25162, 25165 (May 12, 2005). CAIR requires these states to implement controls of sulfur dioxide (SO2) and/or NOx, and includes a NOx ozone season trading program intended to phase out the NOx SIP Call cap and trade program. Id. After 2008, EPA stopped administering the NOx SIP Call trading program and required NOx SIP Call states to sunset their NOx SIP Call trading program provisions.
The District did not adopt its own CAIR regulation, so instead operated under a CAIR Federal Implementation Plan (FIP) to meet its NOx SIP Call obligations for electric generating units (EGUs). The District’s SIP takes credit for CAIR reductions from two EGUs at the Pepco-Benning Road facility[2]. The facility’s EGU units were shut down in 2012.
On August 11, 2011, EPA published a final rulemaking to replace CAIR for EGUs called the Cross-State Air Pollution Rule (CSAPR). 76 Fed. Reg. 48208 (August 8, 2011). The District is not subject to CSAPR because EPA’s analysis found that it does not significantly contribute to nonattainment in any other jurisdiction. Currently, CSAPR is in effect.[3]
States with non-EGU units that participated in the NOx SIP Call are required to take regulatory action to continue to meet NOx SIP Call non-EGU emissions reduction obligations adopted in their SIPs. 40 C.F.R. § 51.905. According to EPA, this can be done by adopting control measures that either: “(A) impose a NOx mass emissions cap on each source; (B) impose a NOx emissions rate limit on each source and assume maximum operating capacity for every source for the purpose of estimating mass NOx emissions; or (C) impose any other regulatory requirement which the State has demonstrated to EPA provides equivalent or greater assurance than [options A or B] that will comply with the State’s NOx budget in the 2007 ozone season.” 40 C.F.R. § 51.121(f)(2).
Summary of Rulemaking
The District currently has one (1) source that was regulated under the NOx SIP Call but was not included in CAIR or CSAPR because it is not an EGU: the U.S. General Services Administration Central Heating and Refrigeration Plant (GSA CHRP). The NOx SIP Call emissions limit for this NOx source was included in the District’s SIP at approximately twenty-five (25) tons per control period[4].
This rulemaking places an overall cap on GSA’s applicable units. Although the trading provisions of the NOx SIP Call have expired, the remaining provisions are still applicable. The proposed rule also includes emissions monitoring, record-keeping, and reporting requirements, along with enforceable mechanisms from the NOx SIP Call to ensure that the sources, including new or modified units, will not exceed the total NOx budget. Finally, the definitions in 20 DCMR § 1099 are being replaced. The definition of “fossil-fuel-fired” in 20 DCMR § 199 is being amended to indicate that there is a different meaning of the term in Chapter 10.
The District also is repealing the outdated NOx Budget Program provisions that pre-dated the NOx SIP Call (20 DCMR §§ 1000 through 1013), because the program ended in 2003. Additionally, the NOx SIP Call provisions of 20 DCMR § 1014 are being repealed, as the trading portions do not apply to any control period after 2008 and the remaining provisions are being retained in this rulemaking.
The extension of a deadline for the cap to the ozone season of 2015[5] is intended to provide GSA with adequate time to comply with the cap. This final rulemaking will be submitted to EPA as a SIP revision to satisfy the same portion of the District’s NOx emission reduction requirements that the NOx SIP Call once satisfied.
Revisions since the First Proposal
GSA submitted comments on the first proposed rulemaking on August 19, 2011.
In their comments, GSA asked that the District retain emissions trading as a form of compliance. As explained above, emissions trading under the NOx SIP Call was administered by the EPA, and EPA discontinued the NOx SIP Call trading program after 2008. EPA is in the process of implementing a new emissions trading program, the Cross-State Air Pollution Control Rule (CSAPR). However the District is not subject to this rule, which is only applicable to electric generating units (EGUs). Facilities in the District are unable to participate in the trading program.
In another comment, GSA asked that DDOE exclude emissions for startup, shutdown, and malfunction (SSM) events from the NOx cap. The District cannot provide for exceptions from the overall NOx emission cap. EPA recently proposed a Startup, Shutdown, and Malfunction (SSM) SIP Call that prohibits the District from allowing exceptions for SSM events. 74 Fed. Reg. 55920 (September 17, 2014). Once the EPA rule is finalized, a corrective SIP revision may be required to ensure that (1) all periods of excess emissions, regardless of cause, will be treated as violations subject to EPA enforcement action, and (2) no periods of excess emissions can be automatically exempted from emissions limits.
In response to several additional comments: the rulemaking does apply generally to any boiler, combustion turbine, or combined cycle system that has a maximum design heat input of greater than two hundred and fifty million British thermal units per hour (250 mmBtu/hr). Subsection 1001.3 now clarifies that if any new source becomes subject to the chapter, the District will amend the limits in the regulation accordingly.
The rulemaking has been revised to alleviate confusion about testing methods as well as record-keeping and reporting requirements.
With regard to concerns about the proposed rulemaking’s penalty provisions, the language in the revised § 1004.1 is derived from EPA’s NOx SIP Call regulation at 40 C.F.R. § 96.54(d)(3)(i). The section does not create a presumption of liability, but rather it defines a violation. A violation of the cap constitutes a violation during the entire control period. See 76 Fed. Reg. 48208, 48297 (August 11, 2011). To pursue penalties for a lesser number of days, the source can provide information for DDOE to consider in exercising enforcement discretion. Note that a Continuous Emission Monitoring System (CEMS) is required to demonstrate compliance; exceptions are permitted according to procedures in 40 C.F.R. Part 75, Subpart H.
GSA commented on previously proposed new unit set-asides, which were initially included in the proposed rulemaking to retain existing limits. Under the NOx SIP Call, the additional one ton per control period was established as a new unit set-aside because, according to 40 C.F.R. § 96.42(d)(1), “the permitting authority will establish one allocation set-aside for each control period…equal to five percent in 2003, 2004, and 2005, or two percent thereafter, of the tons of NOx emissions in the State trading program budget, rounded to the nearest whole NOx allowance as appropriate.” The set-aside has since been removed because allocations of the NOx budget are no longer relevant[6].
GSA requested that DDOE extend the compliance date of the proposed rule, which was initially set to begin in May of 2012. The second proposed rulemaking moved the compliance date to May 1, 2015.
Finally, GSA asked for clarification on the rulemaking’s applicability to unit five (5), the cogeneration system that consists of a boiler and two turbines, specifically, whether the turbines would be subject to the cap when they are operating independently of the boiler. The combined cycle “cogeneration” system is considered to be a unit when operating together or when parts of the unit are operating independently in a simple cycle mode, so yes – the operation of any part of the unit is subject to the ozone season cap.
Title 20 DCMR, ENVIRONMENT, Chapter 1, GENERAL RULES, is amended to read as follows:
199 DEFINITIONS AND ABBREVIATIONS
By amending the definition of “Fossil-fuel-fired” in Subsection 199.1 to read as follows:
Fossil fuel-fired – Except as used in Chapter 10, the combustion of fossil fuel or any derivative of fossil fuel, alone or in combination with any other fuel, independent of the percentage of fossil fuel consumed in any calendar year, expressed in Million British Thermal Units (MMBtu).
By amending the abbreviation of “NO[x]” in Subsection 199.2 to read as follows:
NOx nitrogen oxides or oxides of nitrogen
Title 20 DCMR, ENVIRONMENT, Chapter 10, NITROGEN OXIDES EMISSIONS BUDGET PROGRAM, is repealed and replaced with the following:
CHAPTER 10 – AIR QUALITY – NON-EGU LIMITS ON NITROGEN OXIDES EMISSIONS
1000 APPLICABILITY
1000.1 Beginning on May 1, 2015, this chapter applies to any new or existing nitrogen oxides (NOx) unit.
1001 NOx EMISSIONS BUDGET AND NOx LIMIT PER SOURCE
1001.1 The total amount of NOx mass emissions from all NOx budget sources during a control period shall not exceed the maximum allowable NOx budget of twenty five (25) tons per control period, which shall be allocated as follows:
General Service Administration, Central Heating and Refrigeration Plant (GSA CHRP)
Unit #3, Unit #4, and
Unit #5 (DB, CT-1, and CT-2)
25 tons per control period
1001.2 If the emissions limit specified in § 1001.1 is different from the limit specified in any permit or regulation unrelated to this chapter, the more stringent limit shall apply.
1001.3 When an entity seeks to construct and operate a new NOx unit in the District, and the Director concludes that this unit shall be authorized to emit NOx, the NOx emissions budget for the existing NOx budget source identified in § 1001.1, shall be revised by rulemaking, based on a determination by the Director that:
(a) Justifies that the cap for each NOx budget source does not exceed what is reasonable, based on historical emissions during ozone season, operational needs, and other considerations, as relevant; and
(b) Ensures that the total sum of emissions from all NOx budget sources shall not exceed the total NOx budget in § 1001.1.
1002 EMISSIONS MONITORING
1002.1 The owner or operator of each NOx budget source shall comply with the continuous emissions monitoring system (CEMS) provisions of 40 C.F.R. Part 75, subpart H. The emissions monitoring system shall:
(a) Be installed, certified, operated, maintained, and quality assured in a manner approved by the Department and acceptable to the United States Environmental Protection Agency (EPA); and
(b) Demonstrate whether the NOx emissions exceed the maximum allowable NOx budget or source-specific NOx emission limits specified in this chapter.
1003 RECORD-KEEPING AND REPORTING
1003.1 In addition to meeting the general reporting requirements in 20 DCMR §§ 500 and 501, the owner or operator of each NOx budget source shall retain, for a period of at least five (5) years:
(a) Information on the amount of NOx emissions from the source, such as records of all measurements, data, reports, and other information required by this chapter and the provisions of 40 C.F.R. Part 75, subpart H; and
(b) Other information that:
(1) The Director concludes will enable him or her to determine whether sources are in compliance with these regulations; and
(2) Is described in one or both of the operation permits issued pursuant to 20 DCMR §§ 200.2 or 300.1 to the NOx budget source.
1003.2 The owner or operator of each NOx budget source shall begin recording data the first hour that the NOx budget source is operating for reporting purposes.
1003.3 The information in § 1003.1 shall be submitted to the Department within thirty (30) days of the end of a control period.
1003.4 Any excess emissions shall be reported to the Department in writing within two (2) Department working days.
1004 EXCESS EMISSIONS
1004.1 For purposes of determining the number of days of violation, if a NOx Budget unit has excess emissions for a control period, each day in the control period (153 days) constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.
1004.1 Each ton of excess emissions shall be a separate violation.
1099 DEFINITIONS
1099.1 When used in this chapter, the following terms shall have the meanings ascribed:
Continuous emissions monitoring system or CEMS – the equipment used to sample, analyze and measure air pollutants and provide a permanent record of emissions expressed in pounds per Million British Thermal Units (lb/MMBtu) and tons per day. The following component parts shall be included in a continuous monitoring system:
(a) NOx pollutant concentration monitor;
(b) Diluent gas (oxygen or carbon dioxide) monitor;
(c) Data acquisition and handling system; and
(d) Flow monitor (where appropriate).
Control period – the period beginning May 1st of each year and ending on September 30th of the same year, inclusive.
Excess emissions – the NOx emissions, in tons, that a NOx source reports during a control period that is greater than the maximum allowable NOx emissions limit in § 1001.1 of this chapter.
Fossil fuel-fired – the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel:
(a) Actually combusted comprises more than fifty percent (50%) of the annual heat input on a British Thermal Unit (Btu) basis during any year; or
(b) Is projected to comprise more than fifty percent (50%) of the annual heat input on a Btu basis during any year, provided that the source shall be “fossil fuel-fired” as of the date, during such year, on which the source begins combusting fossil fuel.
Heat input – the product (expressed in MMBtu/time) of the gross calorific value of the fuel (expressed in Btu/lb) and the fuel feed rate into the combustion device (expressed in fuel mass/time) and does not include the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.
NOx budget source – a source that includes one or more NOx budget units.
NOx budget unit – a NOx unit that is subject to the NOx budget emissions limitation under § 1001.1.
NOx unit – fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system that has a maximum design heat input of greater than two hundred fifty Million British Thermal Units (250 MMBtu) per hour.
Ton – any “short” ton (two thousand pounds (2,000 lb)). For the purpose of determining compliance with the NOx budget under § 1001, total tons for a control period shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with this chapter, with any remaining fraction of a ton equal to or greater than five-tenths (0.5) ton being deemed to equal one (1) ton.
[1] NOx SIP Call allocations initially were based on 1995 emissions extrapolated to 2007.
[2] Plan to Improve Air Quality in the Washington, DC-MD-VA Region: State Implementation Plan (SIP) for 8-Hour Ozone Standard, “Moderate Area SIP”, (May 23, 2007), section 6, page 6-9.
[3] On August 21, 2012, the U.S. Court of Appeals for the District of Columbia Circuit vacated CSAPR. EME Homer City Generation, L.P. v. EPA, 696 F. 3d 7 (D.C. Cir. 2012). On April 29. 2014, the U.S. Supreme Court reversed and remanded this decision. EPA v. EME Homer City Generation L.P. 134 S. Ct. 1584 (2014). EPA filed a motion to lift the stay of CSAPR on June 26, and on October 23, 2014, the U.S. Court of Appeals for the D.C. Circuit ordered that EPA’s motion be granted. EPA issued a ministerial rule on November 21, 2014, that extends the dates in CSAPR so that CSAPR Phase I emissions budgets apply in 2015 and 2016, and Phase 2 budgets and provision apply in 2017 and beyond.
[4] Plan to Improve Air Quality in the Washington, DC-MD-VA Region: State Implementation Plan (SIP) for 8-Hour Ozone Standard, “Moderate Area SIP”, (May 23, 2007), section 6, page 6-9.
[5] Phase I of CSAPR is set to replace CAIR in 2015. 79 Fed. Reg. 71663 (December 3, 2014). The date is considered a sufficient extension of time for compliance.
[6] U.S. Environmental Protection Agency. “CAIR Frequent Questions – SIP Call Transition,” found at: http://www.epa.gov/airmarkets/programs/cair/faq-10.html.
