- June 01, 1995, Wygonik, Mark
FPA REGULATORY REPORT
Federal regulatory agencies, formerly intractable and uncompromising, now seek industry input in an attempt to reform environmental law
For the first time since the Clean Air Act was signed into law more than 25 years ago, regulatory reform in the converting industry is undergoing massive, across-the-board upheaval. In the past twelve months, the flexible packaging industry has witnessed major regulatory developments.
* The maximum achievable control technology standard, or MACT, has been proposed and will soon have a sweeping impact on day-to-day printing operations.
* The Environmental Protection Agency (EPA) has issued new guidelines on methods for determining the capture efficiency of volatile organic compounds, which will have a major impact on production processes.
* EPA's Common Sense Initiative (CSI) is potentially the most significant regulatory project in the federal agency's history.
* EPA's Design for the Environment Project will detail the environmental trade-offs between various ink chemistries.
These programs could potentially redefine regulatory agencies and how they determine the rules industry must follow. Meanwhile, regulatory agencies are still at work on the old rules, constantly refining existing regulations. In the next few months, industry can expect further guidance and regulations on various components of the Clean Air Act, including revisions to Title V permitting, the Title V implementation guidance, new source review (NSR), and the prevention of significant deterioration (PSD).
In addition, each and every existing federal regulation is now under scrutiny - President Clinton recently called for a line-by-line review of the entire Code of Federal Regulations.
These are confusing and conflicting times for federal regulatory agencies and the industries governed by them. On one hand, the EPA and others are armed and ready to move forward on guiding compliance with rather stern existing statutes.
On the other, they are under intense pressure - from entities such as Congress, the administration, and industry - to completely revamp their approach while substantially modifying existing guidelines.
A review of these ongoing regulatory changes will help you manage through the maze. And it teaches a very valuable lesson: with commitment and perseverance, industry can help make regulations more reasonable.
The Maximum Achievable Control Technology Standard
The story of the MACT standard demonstrates how industry's early and consistent participation can have a positive effect on the exact parameters of a final rule. The MACT is, essentially, EPA's response to a congressional mandate to control the industrial release of 189 specific, listed hazardous air pollutants (HAPs).
For 2 1/2 years, flexible packaging converters, ink suppliers, and pollution-control equipment manufacturers have worked directly with EPA staff to provide technical data and real-world input into this critical guidance. The result, published in the Federal Register in mid-March, provides much more flexibility for industry than EPA originally considered. It's now a formally proposed rule, which, although not necessarily ideal, can be accommodated by the industry.
In its proposed form, the standard requires compliance by all facilities which have the potential to emit ten tons per year of any one HAP listed or 25 tons/yr. of any combination of the listed HAPs.
If your facility exceeds either of these two triggers, it must then control 95% of its emissions of all HAPs. Industry persuaded EPA to allow facilities to use a combination of control techniques as well as material substitutions to achieve the required level of 95% control.
Nonetheless, industry is still lobbying for greater flexibility in other areas of the MACT standard. EPA has taken issue with the information published on Material Safety Data Sheets (MSDS), which itemize the HAP content in inks and other industrial substances. EPA questions the precision and accuracy of the MSDS information.
The agency proposes, in the MACT, that the ink's HAP content be measured by an analytical method based on gas chromatography - a method both expensive and time consuming. Industry is advocating using ink formulation data instead.
In addition, industry is calling for a simplified means of monitoring the operation of oxidizers (incinerators). The flexible packaging industry has submitted a statement of official comment to the EPA on these and other classifications and refinements.
The industry will work with EPA on resolving these issues before the agency is required, in March 1996, to sign a final rule. Once the rule is signed, industry will have up to three years to comply.
Capture Efficiency of Volatile Organic Compounds
EPA issued the final guidance document on capture efficiency in February of this year, following three years of contentious debate with industry. The guidance specifies three methods which EPA deems acceptable for determining how well the volatile organic compounds given off in the printing process are captured.
It's clear that EPA prefers plants install a temporary total enclosure (TTE) around each printing press and that capture efficiency be determined by using an expensive gas-to-gas mass-balance protocol. The flexible packaging industry was vocal in its opposition to this. First, building TTEs around each printing press is extremely expensive and interferes with production. Second, industry contends that the traditional liquid-to-gas mass-balance testing protocol can produce quality data if it's followed conscientiously.
The final guidance document allows industry to use alternatives to the gas-to-gas protocol, provided the data produced by those alternatives meets pre-set EPA standards for precision and accuracy called the Data Quality Objective (DQO).
The DQO protocol calls for testing in increments until the quality of the data generated meets EPA's statistically-based requirements. Industry's analysis of the DQO indicates that such repetitive testing costs about the same as building TTEs and it voiced this concern to EPA. The agency then responded with yet another option, called the Lower Confidence Limit (LCL). This provides economic relief for those converting lines which may operate under reasonably achievable control technology (RACT) requirements such as older production equipment.
In these cases, EPA maintains that even if the test method is less precise than a TTE, as long as the data indicates emissions control above RACT limits, the test data, and thus the emission control system, is acceptable.
Industry maintains that temporary total enclosures are an expensive and rather drastic means to simply measure compliance. These testing costs do not help to reduce emissions. On the contrary, the test method adversely affects productivity, and it diverts scarce funding from pollution prevention. Yet, the fact these capture efficiency testing requirements evolved to allow for alternative methods can be attributed to the continued pressure applied by industry.
EPA's Common Sense Initiative
Responding to overwhelming pressure for regulatory reform, the EPA began a two-year experiment which could potentially rebuild the agency's infrastructure for regulating environmental protection.
Called the Common Sense Initiative (CSI), it seeks to combine air, water, and solid waste regulations for a given industry in an effort to combat contradictions and to create regulations appropriate to that industry.
The printing industry is one of the six industries chosen for this pilot program. It's represented by a subcommittee of the CSI called the Printing and Publishing Sector, which will address environmental issues relevant to lithography, rotogravure, flexography, and screen printing.
The CSI will bring all interested parties together to formulate environmental policies, which, it's hoped, will be acceptable to industry, citizens, environmental groups, and the EPA. The rules and regulations for these subcommittees and their resultant recommendations are tiresomely intricate and are aimed at establishing consensus during each step of the process. The subcommittees are charged with establishing regulations to encourage industry to go beyond mandated pollution prevention programs.
Even burdened by dauntingly bureaucratic rules of fair play and an exceptionally idealistic charge, the printing subcommittee has taken on some very critical issues. Perhaps most pertinent to our industry is a redefinition of the potential to emit (PTE) which triggers so many regulations for printing plants.
The CSI subcommittee is attempting to document a new and consistent definition of PTE. Therefore, the same definition would apply to a new source review permit or a prevention of significant deterioration permit, to plants in Arizona as well as in Maine, to applications going to EPA Region I or to EPA Region IV.
Such consistency across the board would be a relief to many regulatory personnel in printing firms across the nation, and having a say in how PTE is defined could greatly benefit the industry. But it's industry's charge to take an active role in the creation of the new definition or suffer the consequences of an inappropriate one. EPA has shown its willingness to review case studies of several printing facilities to illustrate the advantages of a new definition. If industry can show how a redefinition would lead to pollution prevention. it could win a victory here.
Another significant program gaining support under the CSI is the concept of an environmental grading system for industry. State EPA representatives and environmental advocacy groups would like to see a type of report card, issued annually, on your company's environmental performance. It would become public information and be used to help determine your company's regulatory compliance.
The Coalition of North Eastern Governors' CONEG Challenge (aimed at reducing packaging or increasing its recycled content) and the Great Printer Project (sponsored by EPA, the Printing Industries of America, and the Environmental Defense Fund to educate printers and the public on pollution prevention) both contain elements of environmental performance reporting and both are under review by the subcommittee for ideas.
There are various organizations already grappling with defining environmental performance, both domestically and internationally. If this idea gains momentum, and it's likely, it will be critical for industry to define the reporting parameters.
Industry representatives are discussing the possibilities that such a system could allow for greater flexibility in plant operations, making it possible for a firm to combine plant modifications and material substitution with great latitude, instead of being subjected to the rigid and arduous permit process.
The subcommittee is also in the process of considering a pilot project to work out some initial ideas.
But beware, the CSI is not just about new regulations, it's a new regulatory order. As mentioned earlier, the CSI is committed to giving equal voice to all environmental stakeholders. A relatively new, yet growing and vocal, member of this group is the environmental justice movement.
Often referred to as the EJ movement, these advocacy groups are concerned that it's, or has been, far too easy for plants to be built in areas where the citizens are poor and cannot afford the legal representation necessary to successfully fight industrial incursion into their neighborhoods. These very neighborhoods, often with affordable rent and an existing work force, historically have been quite attractive sites for a new plant.
But that may change. In its environmental justice strategy, the EPA already has given formal notification that "EJ principles will be included in the decision making process."
How that will be translated into specific regulations remains to be seen. However, using past history as an indicator, there is now a real potential for special provisions to be added to the permit requirements of industry located either in inner cities or in industrial centers.
It's not impossible for the EPA to identify EJ zones, much like the existing ozone non-attainment zones under the Clean Air Act, which would then come under greater regulatory scrutiny and perhaps more exacting emission controls.
Although it's now a series of small initiatives on an experimental level, the CSI could effectively recreate the way in which regulations are determined and implemented.
It's an initiative industry cannot afford to simply follow closely, but one which industry must work with diligently to help shape for the future.
Design for the Environment
Another important regulatory project is EPA's Design for the Environment. It's a voluntary program to conduct an engineering, economic, and pollution-prevention analysis of the three major ink technologies available to the flexographic printer of flexible packaging. This joint effort will research solvent-based, water-based, and ultraviolet-cured ink chemistries for specific uses in packaging.
The resultant report will provide a wide range of data on the variables considered by a packaging converter in making process decisions. EPA will provide the pollution-prevention and worker-exposure analysis, while industry will help compile factors on productivity, equipment and material costs, and product quality. This project is on hold pending the release of funding from the EPA, which is expected later this year.
Although the EPA is overseeing some massive reform efforts, it certainly isn't diverting all of its resources to experiment. The agency has announced several revisions to existing regulations of the Clean Air Act. These, too, seem to bear the mark of regulatory reform - they're all efforts to simplify the regulatory maze.
The Title V operating permit procedures and their federal implementation guidance, which every facility in the U.S. must go through to receive permission to operate, will be made easier to follow. The agency will also work to simplify the new source review process, required for every new press set up.
And if you have a plant in an area with a high level of ozone (called a non-attainment zone), yon must struggle through the added process of assuring prevention of significant deterioration (PSD) of the atmosphere whenever you add a new press. That process too, according to the EPA, will be simplified and clarified. In addition, the agency is reviewing the federal guidelines that require states to set up a Small Business Assistance Program to help small business with the technological challenges of the Clean Air Act.
Finally, President Clinton has asked for a review of every federal regulation in effect today. By executive order, the more than 100,000 pages found in the Code of Federal Regulations are being reviewed to weed out redundancies and irrelevancies. There may be an opportunity for industry to comment on these changes as the program proceeds.
It all sounds like good news, but the truth is, every time an agency opens up a regulation to change it, bad things can happen quickly and irrevocably if industry does not pay close attention.
The political shift that occurred last November is having a marked affect on the Clinton administration and the activities of the EPA. Perhaps at no time in history has there been more opportunity for regulatory reform. Industry is now invited to get involved and even to drive some needed changes.
However, participation does not come without effort, resources, or commitment. Negotiation is a required component of success in today's business, and proper negotiation requires technical and scientific justification, which, in turn, requires investment. But it's an investment industry needs to make for its very future.
Already, the time, effort and resources the flexible packaging industry has brought to its dealings with EPA have had an impact - regulations have been improved. EPA now views industry as a resource for technical information and as an industry concerned with the environment in which its employees, customers and stockholders live.
Most important, we've communicated a willingness to embrace change, provided consideration is given to the reality that all companies must earn a profit to survive.