Clean Air Act Advi

Committee

ICT Waiver Discussio

May 26, 2010
Agenda

EPA RequestStatutory BasisExisting Regulatory Provision1990s Stakeholder and Rulema

Proceedings

Questions for Discussion
EPA Request – Second Qu

• Question Has 2 Parts:

– (1) How can development and pe

innovative emissions reduction mincluding the promotion of inhereand lower emitting processes anfor GHGs, be encouraged?

– (2) How can Innovative Control T

waiver be used or changed to betechnology development and app

Part 2 Is Our Focus In Thes
Statutory Basis – Section 

• “Innovative Technological System

Continuous Emission Reduction

authority in NSPS §111(j) (Not §165 

• What: Waiver from otherwise appl

requirement , with EPA determinatiand consent of relevant State Gove

• Who: Requested by owner/operato

• Why: Encourage use of innovative 

technological system(s) of continuoreduction, that can provide greater than ‘demonstrated technologies.’
Statutory Basis (cont’

• Criteria for Granting: Administrator (wit

State Governor) determines after notice hearing that the proposed system(s) –

• (i) Has/Have not been adequately demonstrate• (ii) Will operate effectively and has “substantial 

(considering any previous failures to operate emeet NSPS) of achieving:

• Greater reduction than would otherwise be 

• Equivalent reduction at lower cost in terms 

economic, or non-air quality environmental 

• O/O demonstrates will not cause/contribute to u

to health, welfare, safety in operation, function, (considering effects on other pollutants and mereducing risk to public health); AND

• Waiver is consistent with §111(j)(1)C); with res

such waivers can be granted (next slide).
How Many Waivers for an “In

Technology? Authority in § 1

• The number of ICT waivers that can 

a proposed system of continuous emreduction:

– “shall not exceed such number as th

finds necessary to ascertain whether system will achieve ...”

• effective operation, • without unreasonable risk to publi

or safety.

AUTHORIZES THE ADMINISTRATOR TO FIND

NUMBER OF TIMES WAIVER CAN BE GRANTED
Statutory Basis -- Sum

• PSD Authority: Not in the statute, but w

§111(j) and has been in the PSD rules sin

• Special Terms: Include terms to assure 

prevent attainment/maintenance of a NAAotherwise cause or contribute to ‘unreasopublic health welfare or safety’.

• How Many: Can be for as many waivers 

necessary to ascertain whether the ICT oeffectively and achieves the reductions wunreasonable risk (see previous slide).

• How Long: Sooner of success or determ

failure but no longer than 7 years from wa4 years from start of operation plus an avextension for “such minimum period as necomply with the [NSPS]” of up to 3 years.

• Extension, if needed, to include: sched

compliance with “otherwise applicable stainclude measures to minimize emissions.
PSD Waiver--History

• Longstanding, included in the original 198• Elements

– "Innovative control technology" means any sy

pollution control that 

• has not been adequately demonstrated in prac• would have a substantial likelihood of achieving 

emissions reduction than any control system in 

• of achieving at least comparable reductions at 

energy, economics, or nonair quality environme

– Limited to attainment areas/PSD.

• 1990 Workshop Manual

– As a practical matter, if a waiver has been gra

source for the same technology, granting of adsimilar sources is highly unlikely since the subare no longer "innovative."

• Kamine Applicability Determination – “No 

waivers” standard – for a particular system control.
1990s Stakeholder/Rulema

• Qs about ICT waivers were par

Reform Discussions in the 199

• CAAAC Subcommittee Develop

Recommendations to EPA in LHistorical Lack of Use of the WProvision.

• Proposed Changes Issued Afte

Reviewing Recommendations o1996.
Changes Proposed in 1

• New Name: Undemonstrated Tech

Application (UT/A) Waiver

• Expanded Scope: UT/A definition 

undemonstrated pollution preventio

• Criteria: 

– Any system, process, material, or trea

technology that shows substantial likeoperate effectively and to achieve 

• Greater continuous reductions of air pollut

any demonstrated system; OR

• Comparable emission reductions

– at lower cost, lower energy input, with less

environmental impacts, or 

– with other advantages that are defined and 

case-specific basis to justify the use of UT/
Rule Changes Proposed i

• Special Terms: Must contain reference emission 

performance objective of the UT/A and the otherwBACT or LAER standard.

• How Long: 2 years from startup or 5 years from 

(CAAAC recommended 4 and 7 years, respective

• Consequences of Failure: Distinguishes based 

failure. Permit must define and include emission modes:

– Marginal Failure Emission Limit and Gross Failure 

Gross limit enforceable.

– Gross failure requires either replace or retrofit, on a

schedule, such that the source achieves BACT or Lmonths.

– Permit would include: (1) ID potential failure modes

corresponding emissions increases expected, (3) cemission increases as marginal or gross failures, acontingency measures, short- and long-term, to redincreases in event of worse-than-expected emissio

the UT/A waiver. 

This Proposal Was Not Finalized W

Reforms 
EPA Solicited Comment on In

• Recognizing that a very limited number o

waivers have been requested or approveCAAAC offered 3 options:

– Allow a source to use, bank, or trade the porti

offsets of a nonattainment pollutant that becomthe UT/A achieves greater emission reductionanticipated;

– Allow the permitting authority, on a case-by-ca

conjunction with the source and subject to pubagree on values of either mass emission reduemission impact reductions in PSD areas in th

– Limit the benefit accruing to the UT/A source t

enforcement of the initial, presumably more stemission limit during the life of the UT/A waive
Questions for EPA

• Can we pull the public comments on 

proposal?

• What has the experience with the U

been since 1996?

• Does EPA agree there is flexibility in 

statutory authority that is not reflecte1990 Workshop Manual or the applidetermination issued in the early 19regarding number of waivers and ot

• Does that additional flexibility, if exe

to be limited to GHG ICTs? 

– If so, why? And, how would it be struct
Questions for CAAAC Disc

• What would it take to encourage companies to use 

recognizing that the provision is voluntary for the ow

– Are there other methods to “share the risk” between 

• What qualifies a control technology as “innovative”

– Definition indicates either better performance on po

comparable performance (not necessarily equiva

– economic, environmental, energy ...

– Stepwise improvement with application?– Other?

• What is the right length of time for waivers? Full 7 y

feeling about the 1996 proposal?

– Would it help encourage risk taking?– Does it provide appropriate sharing of the risk?

• What are the options for proceeding?

– Finalize 1996 Proposal?– Issue GHG technology-specific guidance under the e

language?

• To ensure transparency, does guidance require notice 

so, what benefits would guidance offer over a rulemak

– Other?