May 20, 2016
Bryce Bird, Director
Utah Division of Air Quality
Jon Black, Engineer
Utah Division of Air Quality
PO Box 144820
Salt Lake City, UT, 84114M4820
Re: Intent to Approve: Stericycle Inc. proposed HMIWI facility at 9250 Rowley Road, Tooele, Utah, Project Number: N15446L0001
Dear Mr. Bird and Mr. Black,
Thank you for the opportunity to comment on the Intent to Approve (ITA): Stericycle Inc. (hereafter “Stericycle”), Tooele County, Project Number N15446M0001 (DAQEM IN154460001M16) (hereafter “Proposed HMIWI Facility”), issued by the Utah Division of Air Quality (“DAQ”) and the Division Director (collectively “the Director”). We submit these comments on behalf of HEAL Utah and Western Resource Advocates.
Before beginning our substantive comments, we would like to express our appreciation for your willingness to extend the comment period to allow for more comprehensive analysis and increased public participation.
We’d like to start with, as a broad theme from which the below comments will flow MM given Stericycle’s past record of violations in its North Salt Lake location, including the falsification of records MM we expect the Division to scrutinize this permit application and require the best protections for the health and safety of the surrounding impacted populations and the environment. We hope you agree that this is not a company that deserves the benefit of the doubt, in any way.
Now to our substantive comments.
Best Available Control Technology (BACT)
Under Utah’s federally approved SIP, the Director may issue an AO only if he determines that the “degree of pollution control for emissions…is at least BACT.” Utah Admin. Code r.307M401M8(1)(a); r.307M401M8(5) (“If the director determines that a proposed…modification…does not meet the conditions established in (1) above, the director will not issue an approval order.”).
BACT is defined as an emissions limitation…based on the maximum degree of reduction for each air contaminant which would be emitted from any proposed…modification which the director, on a caseMbyMcase basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such…modification[.]
Utah Admin. Code r.307M401M2(1); Sierra Club, ¶ 48 (holding “that it was unreasonable for the agency to adopt the 0.1 twentyMfour hour emission limitation when there was evidence that a lower overall emission limitation was achievable[.]”). The goals of BACT emission limitations are: “(1) to achieve the lowest percent reduction, (2) to protect shortMterm ambient standards, and (3) to be enforceable as a practical matter.” Sierra Club, ¶ 4 (citing EPA, New Source Review Workshop Manual, B.6M.9). “Once the BACT is selected for a new facility, an emission limitation based on that control technology is also imposed as part of BACT.” Id.
To determine the emission limit that represents the maximum achievable reduction in air pollutants, BACT “review is often conducted using the fiveMstep ‘topMdown method,’ which in essence requires the applicant to adopt the most stringent control technology, unless it can show that the technology is not achievable due to energy, environmental, or fiscal impacts.” Id.
As the Court explained, BACT analysis begins with the identification of all available control technology options for each regulated pollutant. Sierra Club v. Air Quality Board, 2009 UT 76, ¶ 4 fn.2 (citing NSR Workshop Manual B.6M9). “In effect, the reviewer must consider lower emitting processes and practices [and] addMon controls[.]” Id. Then, based on a “documented demonstration,” the “reviewer eliminates technically infeasible options.” Id. The control technologies are next ranked by “effectiveness” based on “based on efficiency, emission rate, and emission reductions.” Id.
Starting with the most stringent technology, the “reviewer” next “objectively” evaluates the economic, environmental, and energy impacts, “both beneficial and adverse,” of the technologies. Id. Only if this analysis “proves” that the first ranked technology is inappropriate, is that technology eliminated and the next most effective alternative evaluated. Based on this process, the most effective, achievable technology is proposed as BACT. Id.
BACT Analysis Must Begin, but Not End with New Source Performance Standards (NSPS)
NSPS represent “best demonstrated technology”– and therefore establish the floor for any sound analysis and the minimum emission limits that must be imposed pursuant to BACT review. Utah Admin. Code r.307M401M2(1) (“In no event shall application of [BACT] result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR parts 60 and 61.”) In the present case, NSPS Ec (Medical Waste Incinerators) represent 1996 and 2008 technology and 1996Mera emission limitations and therefore it may not be assumed that NSPS technology and emission limitations are upMtoMdate or that they represent BACT.
The Director has Not Required Stericycle to Comply with the 40 C.F.R. § 60.54c Siting Requirements NSPS Ec, 40 C.F.R. § 60.54c, requires that Stericycle prepare “an analysis of the impacts” of its proposed Tooele facility. “§ 7429(a)(2). Moreover, “The Director states regarding the siting requirement that:
40 CFR 60.54c requires an analysis of the impacts of the affected facility. The analysis considers air pollution control alternatives that minimize, on a siteMspecific basis, the maximum extent practicable, potential risks to public health or the environment. The Siting requirement has been fulfilled through the BACT analysis which considers the potential control equipment options for this proposed facility.
Engineering Review Ni54460001 at 31.
Thus, the Division has failed to require Stericycle to meet the NSPS Ec siting requirement. After all, under 40 C.F.R. § 60.54c(b), even if BACT analysis were sufficient to address the requirements of § 60.54c – which it is not – Stericycle must still undertake consideration of air pollution control alternatives that “40 C.F.R. § 60.54c(a). There is nothing in the record to show that this analysis occurred or that consideration of “best available control technology” is anything like an analysis of “40 C.F.R. § 60.54c(a). For no other reason then, the ITA is unlawful and lacks support in the record.
As we detail below, the BACT analysis as written, lacks sufficient rigor. Thus, the record further shows that using this deficient BACT analysis as a proxy for meeting the “maximum extent practicable” standard is not defensible. This is particularly true because the BACT discussion gives little or no weight to the minimization of risk to the public health or environment. Rather, the analysis, which lacks adequate documentation, defers to exaggerated cost information that has no support in the record.
The Director has Not Required Stericycle to Comply with the 40 C.F.R. § 60.54c(c) Documentation Requirements
40 C.F.R. § 60.54c(c) references § 60.58c(a)(1)(iii), which requires Stericycle to submit “[a]ll documentation produced as a result of the siting requirements of § 60.54c.” Not only
40 C.F.R. § 60.54c(a); see also 42 U.S.C.
The analysis shall consider air pollution control alternatives that minimize, on a siteMspecific basis, to the maximum extent practicable, potential risks to public health or the environment.”
[a]nalyses of facility impacts prepared to comply with State, local, or other Federal regulatory requirements may be used to satisfy the requirements of this section, as long as they include the consideration of air pollution control alternatives specified in paragraph (a) of this section.”
40 C.F.R. § 60.54c(b). extent practicable, potential risks to public health or the environment.”
minimize, on a siteMspecific basis, to the maximum alternatives that minimize, on a siteMspecific basis, to the maximum extent practicable, potential risks to public health or the environment.”
has Stericycle failed to comply with § 60.54c(a), but the company has failed to document its supposed § 60.54c(c) siting analysis, which it and the Director claim is addressed by virtue of BACT analysis. Yet, the record contains nothing to substantiate the claims made throughout the BACT analysis. The record does not include: 1) any analysis of pollution controls and costs at other Stericycle plants; 2) analysis of waste disposal alternatives to incineration; 3) any basis for cost estimates; 4) any basis for cost per ton removal estimates; 5) documentation or references; 6) emission limits achieved at other similar facilities; 7) any basis for claims about efficiency, emission rate, and emission reductions; 8) The Director’s Analysis Failed to Result in an Emission Limitation Reflective of BACT.
Beyond the fact that there is no basis in the record to support his analysis, the results of the Director’s BACT analysis are legally insufficient. The Director fails to further the articulated goals of BACT – the maximum achievable reduction of air contaminants, and practical enforceability. Sierra Club, ¶ 4, Utah Admin. Code r.307M401M2(1). Moreover, the Director does not establish or impose on the incinerators emission limitations that are reflective of BACT, much less reflective of the maximum reduction of risks to public health or the environment. 40 C.F.R. § 60.54c(a). Indeed, the Director makes no connection between the control technologies he identifies as BACT and any emission limitations that he imposes on the incinerators as a consequence of his analysis. Id.
Unless the record demonstrates that an emission limitation is infeasible, BACT is imposed as an emission limitation. BACT is defined, first and foremost, as “an emissions limitation.” Utah Admin. Code r.307M401M2(1). Accordingly, this Court emphasized that the ultimate result of BACT is the imposition of an emission limitation. Sierra Club, ¶ 4 (“Once the BACT is selected . . . an emission limitation based on that control technology is also imposed as part of BACT.”); id. ¶ 47 (describing the goals of “BACT emission limitations”); ¶ 48 (finding “it was unreasonable for the agency to adopt the 0.1 twentyMfour hour emission limitation when there was evidence that a lower overall emission limitation was achievable.”); NSR Manual at B.56 (“To complete the BACT process, the reviewing agency must establish an enforceable emission limit for each subject emission unit at the source and for each pollutant subject to review that is emitted from the source.”).
Rather than deriving BACT emission limitations or emission limitations based on 40 C.F.R. § 60.54c(a), the Director impermissible adopts, without analysis, the Subpart EC emission limitations. E.g. Engineering Review N15446001 at 20; see also 42 U.S.C. § 7429(a)(2). Therefore, the Director has failed his BACT and siting requirements obligations.
By Equating BACT Emission Limiations with NSPS Ec without Analysis in the Record, the Director has Violated BACT and the § 60.54c(a) Siting Requirements.
As explained above, NSPS represent “best demonstrated technology”– and therefore establish the floor for any sound analysis and the minimum emission limits that must be imposed pursuant to BACT review. Utah Admin. Code r.307M401M2(1) (“In no event shall application of [BACT] result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR parts 60 and 61.”).
In the present case, the Director has not established or imposed on the incinerators emission limitations that are reflective of BACT, much less reflective of the maximum reduction of risks to public health or the environment. 40 C.F.R. § 60.54c(a). Rather, he has adopted, without analysis, the Subpart Ec emission limitations. E.g. Engineering Review N15446001 at 20. Without any basis in the record, the Director has simply assumed that emission limitations based on outMofMdate “best demonstrated technology” are equivalent to BACT and the minimizing of impacts to public health and the environment. In doing so, the Director has violated his BACT and siting requirements obligations and has failed to make a decision supported by the record.
The Director’s BACT Analysis is Insufficient because He Failed to Documentthe Basis for His BACT Review, Including Cost Estimates. More specificially, the Director’s BACT review fails to provide an “objective evaluation” of the costs and benefits of the potential control technologies in specific regard to the “economic, environmental, and energy impacts.”1 (Emphasis added) Because only economic impacts appear to have been considered, the BACT review also fails to provide an adequate basis for its ranking of the available “control technologies by their effectiveness, which is determined based on efficiency, emission rate, and emission reductions.”
However, the application lacks data on the uncontrolled emissions. Without data on the amount of pollution being removed, cost/ton estimates cannot be calculated. Similarly, the provided cost data is insufficient. Repeatedly throughout the BACT review, Stericycle provided cost data, indicating that it was “based on vendor estimates.”3 We have requested these specific vendor estimates, to confirm the Company’s assertions, but they have not been provided.
We requested these estimates because we have reason to believe that several of these costs have been inflated. For example, according to RTI International cost estimates made to the EPA in 2009, the wet scrubber capital costs “range from approximately $260,000 to $453,000.” However, according to the Company’s estimate in the NOI, “Wet scrubbing would additionally require a capital investment of approximately $1,200,000.”
The Company goes on to use this as justification for excluding the use of the technology, stating, ”The economic impact for wet scrubbing is sufficiently high to justify exclusion of the technology, and therefore eliminated wet scrubbing as a viable option for NOx control.” Ultimately, the Company chose the SNCR technology, which was the least effective for controlling NOx emissions of the three viable options.
Because vendor data was not provided, we cannot corroborate the Company’s estimate, but would note that it is more than double the 2009 estimate provided to the EPA.
Notably, a Stericycle facility in Missouri implemented a new wet scrubber and quoted the cost at $500,000, in June of 2000. 6 Logically, we would assume the costs of this technology would diminish over time, not drastically increase. In any case, cost assumptions must be documented.
These discrepancies require clarification and reconsideration of the cost data used in the BACT review. This trend of potentially higher cost estimates is also noted numerous times throughout the BACT review for other control technologies where estimates appear to be inflated.
Ultimately, there must a more robust justification and independent review for the Company’s claims that certain available control technologies are too costly. Additionally, the BACT review is deficient because it does not include requisite consideration of additional “environmental and energy impacts” in addition to the cost data.
The Director Relies on the Wrong Standard in Assessing the Proposed Facility.
According to federal siting requirements, “The analysis shall consider air pollution control alternatives that minimize, on a siteMspecific basis, to the maximum extent practicable, potential risks to public health or the environment. In considering such alternatives, the analysis may consider costs, energy impacts, nonMair environmental impacts, or any other factors related to the practicability of the alternatives.”7 This requirement sets a tougher standard than BACT review, with increased emphasis on minimizing the associated risks to the public and the environment.
However, we believe the Division incorrectly interprets the second part of this statute, which reads “analyses of facility impacts prepared to comply with State, local, or other Federal regulatory requirements may be used to satisfy the requirements of this section, as long as they include the consideration of air pollution control alternatives specified in paragraph (a) of this section,”8 when it concludes that BACT analysis will sufficiently fulfill this requirement.
A Waste Management Plan Has Not Been Provided, Violating Title V Requirements For NSPS
According to NSPS Ec, ”[t]he standards require facilities to develop a waste management plan that identifies the feasibility and approach to separate certain components of the medical/infectious waste stream and hospital waste stream.”
While, Stericycle claims it will separate the medical waste at the source to prevent certain materials from being burned, the company fails to offer a comprehensive plan or mechanism for ensuring compliance. A “waste management plan” is a critical part of compliance with NSPS Ec and of adequate air quality permitting. See 40 C.F.R. § 60.55c
(“ ”); (the waste plan should identify. The public must have the opportunity to comment on this plan as part of the permitting process. Without such a plan, the public and the Director are prevented from assessing the adequacy of the AO as well as Stericycle’s compliance with NSPS Ec. A waste plan is a requirement of the NSPS and failure to provide this reflects clear violation of the standards, leaving the NOI and AO deficient.
A Startup, Shutdown, and Malfunction (SSM) Plan Has Not Been Provided
The AO states that the general MACT requirements apply to the Stericycle facility. Engineering Review at 26. According to these standards, “[t]he owner or operator of an affected source must develop a written startup, shutdown, and malfunction plan that describes, in detail, procedures for operating and maintaining the source during periods of startup, shutdown, and malfunction; and a program of corrective action for malfunctioning process, air pollution control, and monitoring equipment used to comply with the relevant standard.”10 However, the record is devoid of evidence of the existence of such a plan or the inclusion of potential emissions from SSM included in the provided documents. The public must have the opportunity to comment on an SSM plan as part of the permitting process. Without such a plan, the public and the Director are prevented from assessing the adequacy of the AO as well as Stericycle’s compliance with the general requirements of 40 C.F.R. 63. A waste plan is a requirement of the law and failure to provide this reflects clear violation of the relevant regulations, leaving the NOI and AO deficient.
Control technologies for dioxins and furans are insufficient to meet regulatory standards.
According the Director, “[u]pdated emission control equipment and a process design for residency time in the secondary combustion chamber of at least two seconds at 1,800o F (the time and temperature necessary to destroy these pollutants) will help ensure that HAPs emissions remain well below established health thresholds.”
The owner or operator of an affected facility shall prepare a waste management plan. the costs of additional measures, the emissions reductions expected to be achieved, and any other environmental or energy impacts they might have.”)
However, for dioxin and furan compounds, federal law requires “boiler or industrial furnace burning hazardous waste must achieve a destruction and removal efficiency (DRE) of 99.99% for all organic hazardous constituents in the waste feed.”12 The control technologies listed do not meet this requirement, as the baghouse control efficiency is estimated at >99% and the wet venturi scrubber is estimated at 80M95%. Therefore, these dangerous pollutants have the potential to be emitted into the surrounding environment.
Additionally, the assumption that the residency time and temperature in the secondary combustion chamber will be sufficient to control dioxin and furan emissions ignores the reality that conditions are not always optimal. There is a physical impossibility that all dioxins/furans can be reduced and destroyed because optimum conditions do not exist at all times. Moreover, nothing in the NOI or the Engineering Review establishes the control efficiency of this technique or provides monitoring, record keeping and reporting requirements necessary to ensure continuous compliance with the residency time measure.
Similarly, there are likely additional pollution controls or cumulative control potentials that were not considered. For example, according to a report to the Dioxins and Furans Incineration Review Group, commissioned by the Canadian Council of Minsters of the Environment, a number of technologies were considered. They state “Carbon based systems are effective for PCDD/F control. The two main variants of this technology are PAC injection into the gas stream and carbon bed filters known commercially as activated char reactors [ACR] or adsorbers. Recently a new carbon system, the ADIOX process, has been developed in Europe. This system has been applied in many European wet cleaning systems where the scrubber elements have been replaced by carbon impregnated polypropylene elements. Another control measure, the catalytic reactor, destroys the PCDD/F molecules.” However, in the BACT review failed to consider the majority of the technologies listed.A related issue is the lack of information provided regarding what constitutes “good combustion practices.” We see no data to suggest that the company will be able to minimize incomplete combustion at all times. Moreover, to be legally adequate and representative of BACT, MACT and/or the siting requirements, this emission limitation must be enforceable. Therefore, the AO must spell out the elements of good combustion practices.Stericycle Has Violated the November 2014 Agreement
According to the November 2014 Agreement (Settlement Order No. 2013051501) “[w]ithin 90 days…Stericycle shall submit to the Utah Department of Environmental Quality (“DEQ”) all permit applications (over which DEQ has jurisdiction) necessary to relocate the Facility to a new location[.]” November 2014 Agreement ¶ 13a; see also 13b (Stericycle will provide 12 40 CFR 266.104(a))
DAQ with a schedule for the construction of the incinerator in the new location”) (emphasis added). The Agreement further defines “Facility” as the “hospital/medical/infectious” facility that “Stericycle operates…located at 90 North Foxboro Drive, North Salt Lake, Davis County, Utah (‘Facility’)[.]” Id. at ¶ 2. The capacity of that North Salt Lake Hospital, Medical, Infectious Waste Facility is 2,500 lbs of waste per hour. DAQEMAN101420011M14 at ¶ II.A.2. The Facility consists of “one (1) incinerator[.]” Id.
Despite the requirement that it seek the permits necessary to relocate the “Facility,” Stericycle has instead submitted an NOI to construct a “4,100 pounds per hour” plant consisting of two 2050 pounds per hour HMIWI units. Engineering Review N154460001 at 3 & 18 (installations shall consist of two (2) HMIWI Units each with its own dedicated air pollution control system). Thus, Stericycle has not submitted an application to DAQ to relocate “the Facility,” but instead has submitted an application to build a new plant, essentially twice the size of the North Salt Lake Facility. In violation of the 2014 agreement, Stericycle has failed to comply with Paragraph 13a and must pay the requisite fine.
The 2014 Agreement Stipulates the Move of the Existing Facility and Is Not Contingent on Approval of the Entire Proposal Made by Stericycle
As explained above, the 2014 Agreement addresses the relocation of the existing Stericycle Facility to Tooele. November 2014 Agreement ¶ 13; ¶ 11b (anticipating that Stericycle will cease operating the North Salt Lake Facility “no later than three years from the date Stericycle obtains the final, nonMappealable permits from [DEQ] necessary to commence construction of the new incinerator”). The Facility is clearly defined in the Settlement Agreement (SA) as the existing North Salt Lake facility, (“Stericycle operates a hospital/medical/infectious located at 90 North Foxboro Drive, North Salt Lake, Davis County, Utah (“Facility”),14 which consists of one incinerator with a capacity of 2,100 pounds of waste per hour. DAQEMAN101420011M14 at ¶ II.A.2. ). The Agreement further provides that within three years after Stericycle obtains “All Necessary Approvals to Construct,” Stericycle shall permanently cease operation at the North Salt Lake Facility.” 2014 Agreement at ¶ 14. “All Necessary Approvals to Construct” defines approvals “necessary to commence construction of the new incinerator[.]” Id. at 11b (emphasis added).
Thus, the Settlement Agreement is clear. Stericycle must submit permit applications, including an application for an AO, necessary to facilitate the move its North Salt Lake Facility to Tooele. That Facility consists of one incinerator with a capacity of approximately 2,100 tons per hour. Three years after Stericycle receives the requisite authorizations to build one incinerator with a capacity of approximately 2,100 tons per hour, the company must close its North Salt Lake Facility.
What this means is that the Director must either reject the NOI as failing to comply with Paragraph 13a and the text and purpose of the 2014 Agreement or treat the NOI as an application for a single incinerator of approximately 2,100 tons per hour capacity. It is critical to the proper implementation and enforcement of the 2014 Agreement that the requirement that the North Salt Lake Facility be shuttered in three years be contingent only on nonMappealable approvals relating to one incinerator of approximately 2,100 tons per hour capacity. To condition the shutdown on nonMappealable permits and approvals for the two incinerators and a plant with a capacity double the capacity of the North Salt Lake Facility is contrary to the 2014 Agreement. While Stericycle may apply for permits for its other incinerator, it must do so outside of the 2014 Agreement.
The NOI is Contrary to the Intent and Purpose of the 2014 Agreement.
As explained above, the text and the intent of the 2014 Agreement is to facilitate the closure of the North Salt Lake Facility and the removal of that same Facility to Tooele. The text and the intent of the agreement is not to hold the citizens of North Salt Lake hostage while Stericycle seeks approval for a plant twice the size of the North Salt Lake Facility. The proposed facility, as set forth in the NOI and considered by the Director, exceeds the bounds of the Settlement Agreement and actually provides a financial boon for Stericycle. Because the relocation was allowed, in lieu of paying half of the $2,322,536 total fine, it is improper to further financially reward the company for breaking the law by facilitating its request to double its capacity. The 2014 Agreement may not be read as conditioning the closure of the North Salt Lake Facility on approval of a new plant in Tooele, regardless of its capacity. Therefore, the Director must make it clear that the 2014 Agreement applies only to permits and approvals for a Facility that mimics the current facility in capacity. To act otherwise is contrary to the text and purpose of the agreement, would allow Stericycle to coerce the Division into approving the NOI and makes the people of North Salt Lake the pawns of Stericycle’s plan to double the size of its facility.
Thank you for you consideration of our concerns and for your efforts to protect Utah’s public health and environment.
Matt Pacenza Executive Director, HEAL Utah
JORO WALKER, Esq. CHARLES R. DUBUC, JR., Esq. WESTERN RESOURCE ADVOCATES