For standards scheduled to be issued before May 15, 2003, the Part 2 application would be due on May 15, 2003.
For standards scheduled to be issued after May 15, 2003, the Part 2 application would be due 60 days after EPA’s missed deadline.
In effect, this settlement allows for a staggered schedule for submittal of Part 2 applications if EPA misses the promulgation deadlines previously agreed to. Therefore, the settlement represents a more extended schedule than the earlier proposed settlement, which would have required all Part 2 applications to be submitted by May 15, 2003 for any source category for which the MACT was not yet promulgated.
In accordance with the settlement agreement, EPA proposed the new schedule in the December 9, 2002 Federal Register and must issue a final rule by April 27, 2003. EPA still expects to finalize all MACT standards before Part 2 applications are due, and thereby eliminate the need for states to establish case-by-case MACT. However, there are up to 15 MACT standards that may not be finalized before the May 15, 2003 first hammer deadline.
The Clean Air Act Amendments of 1990 required the USEPA to promulgate MACT standards for all listed source categories on a 2, 4, 7,and 10-year schedule, but no later than May 15, 2002. The hammer rule requires sources in categories for which EPA is late to file case-by-case MACT applications. The work required to prepare the applications is somewhat a function of how much work EPA has already done and how close EPA is to promulgating the standard.
What Needs To Be Done?
For those source categories with a May 15, 2003 deadline for submittal of Part 2 applications, it is imperative to start preparation of the Part 2 application now. The Part 2 MACT Application must be submitted to the state air permitting authority by May 15, 2003 unless EPA finalizes rule promulgation for these sources. **
USEPA has published a 134-page guidance document providing instructions for making Section 112(j) MACT determinations. ** Ultimately it will be the responsibility of the state permitting authority to establish MACT requirements, which includes prescription of emissions limits, emissions control technology, work practices, operational standards, compliance assurance procedures (i.e., monitoring, testing, recordkeeping and reporting), or combinations thereof. The key step in this process involves establishing the 'MACT Floor,' i.e., the minimum level of control that can be specified as MACT under Section 112(d). **
It is in the interest of owners and operators of facilities subject to these requirements to be proactive and take as much control as possible in this process to yield the results that are most favorable from a cost and operational flexibility standpoint.
The MACT requirements apply only to facilities that are major sources for HAPs. It is important for potentially affected facilities to determine whether they either actually are a major HAPs source or could live with limitations on HAPs emissions to be a minor HAPs source. Some facilities may conclude that it is preferable to avoid the Part 2 MACT Application requirement by becoming (or formally establishing) minor source status.
The level of detail prescribed by USEPA in their regulations and guidance document for the Part 2 MACT Application is not clear, but could be significant. However, in ENSR's opinion, for many sources it would be unwise to commit much time and money to the preparation of such a detailed application, for the following reasons:
For source categories for which USEPA has already proposed standards, it is unlikely that the compliance plan contained in a Part 2 MACT Application would deviate significantly from the proposal. USEPA has consistently represented that they will complete rulemaking well in advance of the relevant dates. Rules have in fact been proposed for 27 of the 31 source categories** (as of January 9, 2003), and the remaining 4 rules have been signed off for publishing in the Federal Register shortly.
States will be free to judge what constitutes an acceptable MACT compliance strategy and so even the best-supported MACT proposal may be overruled by a state. This is particularly true for states in which numerous sources in the same category submit separate applications, or source categories for which numerous sources exist nation-wide (it is clear that states will need to work together to devise common strategies for the same source categories).
USEPA’s own guidance states that 'permitting authorities and applicants should recognize that establishing the appropriate level of control is an iterative process that will require on-going communication and exchange of information between the permitting authority and the applicant.' This means that USEPA expects a process in which an initial Part 2 MACT Application submittal is followed by rounds of questions, comments, and information requests from the state agency (and probably USEPA as well) before final approval is rendered.
How can ENSR Help?
ENSR air quality engineers assisted several large industry trade associations in their stakeholder roles on the review, comment, and negotiation and, for two industry groups, the joint development with EPA of the MACT standards. ENSR can help you to determine and implement the minimum level of effort required to comply with, or possibly become exempt from, the MACT Hammer while avoiding the risk of unnecessary costs associated with 'over-compliance'. We can determine the expectations of the state permitting agencies for the Part 2 applications and the likely limits, controls, and compliance procedures. We can provide you with comprehensive details on the status of your MACT standard and evaluate your current operations and your Title V permit to identify readily available information for the MACT application. In many cases, you could have a 'minimal' Part 2 application completed and on stand-by with very little effort.
Specifically, ENSR will:
- Determine conclusively whether your facility can and/or should become a minor HAPs source.
- Determine the current status of USEPA's effort for your source categories, including the MACT floor determination.
- Determine exactly what information and format your state will require for the Part 2 MACT Application.
- Conduct any required technical analyses, develop a compliance plan and prepare the Part 2 MACT for submission, if ultimately necessary, to the state permitting authority.