                                       

July 15, 2011

Via Electronic Transmission: combustionsurvey@erg.com; shrager.brian@epa.gov; jones.toni@epa.gov
EPA Docket ID. No. EPA-HQ-OAR-2002-0058
EPA Docket ID. No. EPA-HQ-OAR-2003-0119

Ms. Toni Jones & Mr. Brian Shrager
Sector Policies and Programs Division
Office of Air Quality Planning and Standards
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711

Dear Ms. Jones and Mr. Shrager:

Waste Management (WM) is pleased to provide additional data and information to inform the Agency's reconsideration of the "National Emission Standards for Hazardous Air Pollutants for Major Sources:  Industrial, Commercial, and Institutional Boilers and Process Heaters" (hereinafter the "Boiler Rule") and "Standards of Performance for New Sources and Emission Guidelines for Existing Sources:  Commercial and Industrial Solid Waste Incineration Units" (hereinafter the "CISWI Rule").  As North America's leading provider of integrated environmental solutions, WM is uniquely interested in ensuring that the Agency's final CISWI Rule and Boiler Rule upon reconsideration reflect and support ongoing and newly evolving efforts to reduce, reuse and manage waste, while recovering valuable resources and producing clean renewable energy.  In addition, these rules must not unfairly and without notice, change longstanding regulatory determinations and control standards that currently apply to landfill gas.

WM has been a constant advocate of landfill gas as a renewable alternative fuel. WM operates 131 landfill gas-to-energy projects that produce enough renewable energy to power nearly half a million homes and replace use of about 2.4 million tons of coal per year.  These projects offset criteria pollutants and hazardous air pollutants associated with coal use and also offset nearly 3 million tons of CO2e emissions each year.  While most of our renewable energy projects involve combusting landfill gas in engines or turbines to produce electricity, about twenty percent of our projects involve treating and conveying landfill gas to third parties to use as fuel in their facility boilers.  Some of our landfill gas customers include BMW, DuPont, Dow, GM, Ford, the University of New Hampshire and NASA Goddard Spaceflight Center.  These organizations have chosen to utilize landfill gas as a viable replacement for fossil fuel, and as a key element of their corporate sustainability goals.  Furthermore, investment in these projects has been strongly encouraged by Congress and EPA's Landfill Methane Outreach Program (LMOP).  Failure to harmonize the Boiler Rule and CISWI Rule standards with national renewable energy and greenhouse gas reduction goals will undermine significant sustainability investments by private companies, local governments, and federal agencies.  In addition, the imposition of new and unreasonable regulatory burdens upon the combustion of landfill gas will conflict with existing Clean Air Act regulations governing landfill gas control and use as a renewable fuel, including the Standards of Performance for Municipal Solid Waste Landfills, 40 C.F.R. Part 60, Subpart WWW (the "Landfill NSPS") and the National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills, 40 C.F.R Part 63, Subpart AAAA (the "Landfill MACT").

EPA Must Clarify that the CISWI Rule Does Not Apply to Combustion of Landfill Gas

First and foremost, EPA must clarify that the CISWI Rule does not apply to the combustion of landfill gas, either when combusted for control (as in an enclosed flare) or combusted as a fuel (as in a boiler).  WM submitted a petition for reconsideration of the final CISWI Rule, which we have appended as Attachment A.  WM's petition focused on EPA's removal of the definition of "contained gaseous material" from the final CISWI Rule, which represents a significant shift away from EPA's established interpretation of the scope of section 129 of the CAA, as it relates to the definition of "solid waste" under the Resource Conservation and Recovery Act (RCRA).  

EPA's statements in a related rulemaking record further indicate that EPA's final CISWI rule departs significantly from EPA's established interpretation of section 129 of the CAA.  Specifically, in its Response to Comments for the Identification of Non-Hazardous Secondary Materials That Are Solid Waste Rule, published at 76 Fed. Reg. 15456 (March 21, 2011) (NHSM Rule), EPA cast significant doubt on the continued vitality of its past interpretation of "contained gaseous materials," and suggested the combustion of air emissions for pollution control may constitute the combustion of solid waste subject to the CISWI Rule.  Further, EPA stated that landfill gas may constitute "solid waste" simply because landfill gas is extracted from a waste mass, and if used as fuel would be subject to a demonstration of legitimacy under the NHSM Rule.  

Taken together, these two Agency actions signal a significant shift in policy and regulatory precedent and were made without any prior notice to regulated entities, and without opportunity for comment.  For over twenty years, EPA has developed a comprehensive regulatory structure to govern the collection, control and treatment of landfill gas under the Clean Air Act  -- a structure based on the correct determination that landfill gas is not a solid waste under RCRA.  EPA's deletion of the definition of contained gaseous material and statements in the NHSM rulemaking record threaten to undercut the existing regulatory scheme established under the CAA by potentially subjecting landfill gas combustion to the CISWI Rule.  Regulation of LFG as a solid waste also threatens to undermine the market for LFG as a fuel, in direct contradiction to the stated goals of EPA's Landfill Methane Outreach Program and the administration's broader goals to encourage domestic, renewable energy sources.

It is clear from a review of the CISWI rulemaking record that the Agency did not contemplate the possibility that landfill gas combustion units may be subject to CISWI.  EPA's evaluation of regulatory impacts did not identify massive costs associated with application of the rule to thousands of landfill gas combustion sources.  Regulation of landfill gas under section 129 of the CAA would dramatically affect the cost of capture and control of landfill gas.  As an initial matter, WM anticipates that current third party users of landfill gas would discontinue using landfill gas when faced with strict emission limits.  Without an end market for the sale or transfer of gas, WM and other landfill owners /operators will be left with greater quantities of landfill gas to control.  For example, landfill gas flares (which are approved pollution control devices under the Landfill NSPS and Landfill MACT) would need to be replaced with thermal oxidizers to meet section 129 emission limits.  For WM alone, we estimate our capital costs for installation of thermal oxidizers (about $412 million) to exceed the total EPA estimated costs identified in the CISWI Rule for all its intended sources.  Based on EPA's estimated annual costs of compliance for each facility ($186,000), we estimate WM's annual compliance costs would exceed $50 million per year.  Such costs would be a significant financial burden for WM, and would be ruinous to the many local governments that own and operate MSW landfills and combust landfill gas for control or as fuel. 

On May 13, 2011, the Director of the Office of Resource Conservation and Recovery wrote a letter to the American Forest and Paper Association, to provide clarification of Agency statements made in the Response to Comments Document indicating a change in interpretation of what constitutes a "contained gaseous material."  While the Office Director's letter indicates that the Agency has not changed its previous positions, and that previous statements and interpretation remain effective, the Agency has not yet issued a technical correction to the Response to Comments Document, nor has it specifically addressed and clarified the regulatory status of landfill gas.

Because EPA has not taken action to stay or amend the NHSM Rule, it is imperative that the Agency clarify the CISWI Rule by confirming the longstanding definition of "solid waste" as extending only to "contained gaseous material" and by clarifying that the combustion of gaseous emission streams does not constitute the combustion of solid waste subject to the CISWI Rule.

The Boiler Rule Should Not Deter Use of Landfill Gas as an Alternative Fuel

WM believes that the Boiler Rule, as published, creates a significant disincentive to using landfill gas as an alternative, renewable fuel.  Our primary concern is that EPA has categorized landfill gas as a Gas 2 fuel, and thereby subjected landfill gas-fired units to unreasonable emission limitations that will be cost prohibitive to meet.  Further, although EPA has created a fuel specification for "other Gas 1 fuels" by which landfill gas and other gases may qualify for Gas 1 regulatory treatment, the fuel specification does not provide a viable avenue by which landfill gas would be relieved of the regulatory burdens associated with unnecessarily stringent emission limits.  WM is encouraged that EPA has acknowledged in its National Emission Standards for Hazardous Air Pollutants; Notice of Reconsideration ("Reconsideration Notice") published at 75 Fed. Reg. 15266 (March 21, 2011) that this and other provisions of the Boiler Rule are of central relevance to the rule and arose after the period for public comment, and were impracticable to comment upon.  WM supports EPA's Reconsideration Notice on that basis and submitted a petition to the Agency to reconsider and amend the Boiler Rule.  We have appended our petition for reconsideration as Attachment B.

Specifically, WM requested that the Agency reconsider its categorization of LFG as "Gas 2" under the Boiler Rule, and amend the rule to clarify that landfill gas constitutes a "Gas 1" fuel for which the imposition of emission limits is infeasible and impracticable.  Alternatively, to the extent that landfill gas may only quality for "Gas 1" categorization through a fuel specification, WM requests that EPA revise the specification to ensure that it is established in a manner which will include landfill gas that is managed in accordance with existing Clean Air Act requirements, and which will ensure that landfill gas may be combusted without the imposition of burdensome sampling and analysis requirements.  Finally, landfill gas-fired units should not be subject to emission limits under the Boiler MACT.  The emission limits established for Gas 2 units are technically infeasible and cost prohibitive to promoting renewable sources of energy.

Landfill Gas Should be Identified as a Gas 1 Fuel

Waste Management contracted with CH2MHill to conduct a comparison of the emissions properties of boilers firing landfill gas as fuel to those of boilers firing Gas 1 fuels, and to examine the publicly available information to compare landfill gas to Gas 1 fuels, specifically natural gas and refinery gas.  (The report is appended to our comments as Attachment C.)

As described in the appended report, CH2MHill concluded that sufficient data were readily available for EPA to establish that LFG is comparable to natural gas and refinery gas with regard to HAP emissions, and that both emissions and raw gas analysis data support the conclusion that LFG should be classified as a Gas 1 fuel.  A brief summary of the report conclusions follows:

A comparison of the readily available data for landfill gas-only fueled boiler emissions indicates that the ranges of reported results for mercury, PM, CO, and dioxin/furans are within or below the ranges of these parameters for one or both of the recognized Gas 1 fuels -- natural gas and refinery gas.  No HCl data were available for refinery gas for comparison to landfill gas; however, the few HCl emissions data points available from landfill gas-fueled boilers (0.00321 to 0.00398 pounds per million British thermal units [lb/MMBTU]) are lower than the Boiler MACT emission limits for existing coal-fired units (0.035 lb/MMBTU).
Mercury levels in raw landfill gas from 15 landfills reported in EPA's BID (2008) for Revisions to the AP-42 Emission Factors for Municipal Solid Waste (MSW) Landfills indicated a range of total mercury orders of magnitude lower than the available data for mercury in natural gas.  A comparison of the constituents of raw landfill gas to the recognized Gas 1 fuels is inconclusive with respect to the other HAP and surrogate parameters because of the dearth of available data for the Gas 1 fuels.
Data developed by EPA in its 2008 BID support the conclusion that the mercury level in landfill gas is consistently much lower than the Gas 1 fuel specification level of 40ug/m[3]. 
EPA based its H2S fuel specification of 4 ppmv on sweetened, pipeline-quality natural gas; however, refinery gas (already categorized as Gas 1) typically contains much higher levels of H2S than the Gas 1 fuel specification.  CH2MHill noted that the H2S concentrations in refinery gas can range from 0 to 450,000 ppm.  The range of H2S concentrations in landfill gas noted in the EPA 2008 BID ranged from 0.00102 to 55.7 ppm.  Landfill gas should not be held to a higher H2S standard than refinery gas for qualification as a Gas 1 fuel, especially considering that H2S is neither a HAP, a HAP precursor nor a surrogate for HAP emissions. 
Based on the above analysis, WM strongly recommends that landfill gas be categorized as Gas 1 under the Boiler Rule.  The data for mercury and H2S in landfill gas support its characterization as a Gas 1 fuel.  Further, should boiler owners switch fuel from landfill gas to one of the currently defined Gas 1 fuels, increased pollution emissions will occur.  Use of natural gas or refinery gas will increase criteria pollutant and greenhouse gas emissions compared to landfill gas.  Landfill gas has been shown to produce lower nitrous oxide emissions than natural gas, and using landfill gas lowers fossil carbon dioxide emissions as compared to both Gas 1 fuels.

EPA Should Revise the Gas 1 Specification  

To the extent that landfill gas, or any gaseous fuel may only qualify for Gas 1 categorization through a fuel specification, WM requests that EPA revise the specification to ensure that it is established in a manner that will include landfill gas that is managed in accordance with existing CAA requirements as discussed above and in more detail in Attachment B.  For example, the Landfill MACT requires that landfill gas be routed to a treatment system that processes the gas for subsequent sale or use as fuel; this requirement would be an appropriate and adequate specification for demonstrating that landfill gas may be combusted as a Gas 1 fuel.  Alternatively, to the extent that EPA determines that an H2S specification limit must apply, any such limit should be derived from an existing landfill gas combustion-related sulfur content limit.  The NSPS (KKKK) for Stationary Turbines (40 CFR Part 60.4330) as revised in 2009, provides such a limit.

Landfill Gas Should Not be Subject to Additional Emission Limits When Used in Boilers

EPA has already evaluated, and regulated, HAP emissions that may result from the two circumstances under which landfill gas may be used in a boiler under the Landfill NSPS and the Landfill MACT.  First, landfill gas fired directly to a boiler operating as a control device is subject to the non-methane organic compounds (NMOC) emission standard that was established pursuant to the Landfill NSPS and determined under the Landfill MACT to adequately address HAP emissions.  Imposition of additional emission limits from such control devices would constitute an impermissible duplication of emission limits under Section 112 of the CAA.  Second, the Landfill NSPS and the Landfill MACT require that landfill gas used as a fuel must be treated and processed in a manner that ensures proper combustion in accordance with specifications required by the receiving combustion unit.  Imposition of emission limits under the Boiler MACT for this use of landfill gas, where natural gas and refinery gas are not subject to such limits, would create an extreme disincentive to the use of landfill gas for energy recovery. For these reasons, the Gas 2 emission limits in the Boiler Rule should not apply to landfill gas-fired boilers.

Waste Management appreciates the opportunity to share this additional information with the Agency, and looks forward to working with you as you reconsider and revise the Boiler and CISWI Rules.  If you have any questions with our comments or with the attached materials, please feel free to contact me at (202) 639-1218 or by email at kkelly5@wm.com


Sincerely,



Kerry Kelly, Director
Federal Public Affairs
