Until now, States have been left to interpret the applicability of section 112(j) with little input from U.S. EPA. Some States have adopted a “wait and see” approach and are waiting for U.S. EPA to weigh in on the issue. In the absence of any guidance, some States, such as Pennsylvania, have called for some sources to submit applications that meet the 112(j) requirements. The Pennsylvania Department of Environmental Protection (PADEP) recently requested that all facilities previously subject to the Boiler MACT submit 112(j) applications.
However, other sources previously subject to a MACT standard, such as brick and clay tile manufacturers, have not been required to submit 112(j) applications. The proposed revisions to 40 CFR Part 63, Subpart B would clarify that the 112(j) requirements do apply to listed major sources after a MACT standard has been vacated in its entirety.
What sources would be affected by the proposed changes?
U.S. EPA’s proposed amendments would affect all major sources of HAP that were previously subject to the following MACT standards that were vacated in their entirety by the D.C. Circuit Court:
• Polyvinyl Chloride and Copolymers Production (PVC MACT) – vacated on May 11, 2005.
• Brick and Structural Clay Products Manufacturing (Brick MACT) – vacated on June 18, 2007.
• Clay Ceramics Manufacturing (Clay Ceramics MACT) – vacated on June 18, 2007.
• Industrial, Commercial and Institutional Boilers and Process Heaters (Boiler MACT) – vacated on July 20, 2007.
It is important to note that following promulgation of the proposed changes, section 112(j) regulations would only apply where there has been or occurs in the future a vacatur of a MACT standard since U.S. EPA has issued MACT standards for all initially listed source categories.