Navigating State-Specific Air Toxics Programs

Hazardous Air Pollutants (HAP), also commonly referred to as Toxic Air Pollutants (TAP) or air toxics, are those pollutants that are known or suspected to cause cancer or other serious health effects, such as reproductive effects, birth defects, or adverse environmental effects.  We’re all familiar with the technology-based approach used by U.S. EPA to regulate air toxics through their development and implementation of Maximum Achievable Control Technology (MACT) standards.  Many of us have also had exposure to the Risk and Technology Review (RTR) process, which is conducted by U.S. EPA every eight years after a MACT standard has been set for U.S. EPA to determine if revisions to existing MACT standards are necessary to protect human health.

However, many states make the decision that it’s not enough to simply incorporate Federal MACT standards to safeguard public and environmental health.  The following states incorporate additional requirements into their permitting rules or policies which must be considered by new and modified sources: California, Delaware, Georgia, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, New Hampshire, New York, North Carolina, Oklahoma, Oregon, Texas, Virginia, and West Virginia.  Other states require air toxics evaluations for existing sources as part of operating permit renewal applications (e.g., New Jersey). In this article, we’ll provide a broad overview of unique air toxics programs in some of the states we often work in – namely Georgia, Maryland, Michigan, New Jersey, and Texas.

If your facility is either located in one of the states discussed herein, or in another state with its own unique air toxics requirements, we encourage you to stay vigilant regarding such requirements as state agencies are starting to lean more heavily on their own regulations given the downturn in regulatory activity at the Federal level. For those of you with operations outside of states with unique state-specific air toxics programs, consider the fact that state requirements such as those detailed in this article may require a bit more planning, strategy, and analysis.

Georgia

In the State of Georgia, a Toxics Impact Assessment (TIA) must be conducted for new and modified sources of air toxics pursuant to the State’s “Guideline for Ambient Impact Assessment of Toxic Air Pollutant Emissions.”  The obligation to conduct such an assessment stems from Title 391‚ Chapter 3‚ Rule 1‚ Section 2‚ (2)(a)(1) and (2)(a)(3) of the Georgia Air Quality Control Regulations and the air toxics of concern are listed in Appendix A of the referenced guidance document.  For such pollutants, the Georgia Environmental Protection Division (GEPD) requires calculation of an acceptable ambient concentration (AAC), air quality modeling of a predicted ambient impact, and a comparison of the modeled result with the AAC.  This first series of steps is regarded as “screening” after which more in-depth analysis may be required.  This initial step includes a screening level air dispersion modeling evaluation, using U.S. EPA’s SCREEN3 air dispersion model, to predict Maximum Ground Level Concentrations (MGLCs) from a given facility.  The MGLCs are then compared to the calculated AACs established using toxicity data from the Integrated Risk Information System (IRIS) and Occupational Safety and Health Administration (OSHA) Time Weighted Average (TWA) and ceiling Permissible Exposures Limit (PEL) standards (PEL-TWA, PEL-C).  If an MGLC exceeds a respective calculated AAC, additional analyses may be required including a site-specific risk assessment, the use of alternative toxicity data, safety factors, or alternative methods of impact assessment.  If, after performing a site-specific risk assessment, it is determined that it is infeasible to comply with an AAC or not possible to demonstrate that the cumulative hazard risk index is below 1, then GEPD may, at their discretion, require installation of New Source MACT, which for the purpose of the referenced guidance document means “the control technology which reflects the maximum degree of reduction in emissions of hazardous air pollutants that the Director determines is achievable by the source, provided that such control technology is no less effective than the level of emission control which is achieved in practice by the best controlled similar source.”

An understanding of the various data required to perform the TIA, the assumptions and limitations inherent to the dispersion model, the basis for calculation of the AAC (with special consideration to the acquisition of pollutant toxicity data, adjustment of toxicity data for potential public exposure in excess of occupational exposure, application of safety factors, and averaging periods), and the general comparative procedure for determining toxic pollutant impact is required when performing a TIA in Georgia.

Maryland

In the State of Maryland, both new and modified sources of air emissions must be evaluated with respect to the following state-specific TAP requirements found at Code of Maryland Regulations (COMAR) 26.11.15:

• COMAR 26.11.15.04 – Requirement to Quantify Emissions
• COMAR 26.11.15.05 – Control Technology Requirements
• COMAR 26.11.15.06 – Ambient Impact Requirement

An applicant’s first obligation, under COMAR 26.11.15.04, is to quantify the emissions of TAP from the premises.  For a new source (constructed or reconstructed after July 1, 1988), any of the listed pollutants in COMAR 26.11.16.06 or .07 plus any other air pollutant that is considered a health hazard as defined by OSHA is considered a TAP.  For existing sources (constructed prior to July 1, 1988), only pollutants listed in COMAR 26.11.16.06 or .07 are considered TAPs.

Next, new sources and certain existing sources must perform a Best Available Control Technology for Toxics (T-BACT) analysis pursuant to COMAR 26.11.16.05.  Similar to a Best Available Control Technology (BACT) analysis conducted in support of a Prevention of Significant Deterioration (PSD) project, the procedure for conducting a T-BACT analysis involves the top-down identification of available air pollution control options (i.e., starting with the most effective); performing an analysis of energy, economic, and environmental impacts; and selecting the most effective control alternative not otherwise eliminated as T-BACT.

Maryland also requires that an applicant demonstrate that premise-wide emissions and off-site impacts (as determined by air dispersion modeling) of each TAP will not adversely affect public health based upon established benchmarks (i.e., screening levels).  In general, if premise-wide emissions are calculated as being less than the maximum allowable emissions or if the off-site impact of the premises-wide emissions of each TAP is less than the screening levels for the TAP, adverse public health effects would not be expected.

Michigan

In the State of Michigan, new and modified sources of air emissions are potentially subject to the following State air toxics regulations:

• R 336.1224 – T-BACT Requirement for New and Modified Sources of Air Toxics
• R 336.1225 – Health-Based Screening Level Requirement for New or Modified Sources of Air Toxics

Michigan’s Health-Based Screening Level Rules require each new or modified emissions unit that is required to obtain a Permit-To-Install (PTI), and which emits a Toxic Air Contaminant (TAC), to ensure that the emissions of TAC associated with the project are not more than predicted maximum allowable emission rates.  Making such predictions involves review of the Michigan Department of Environmental Quality (MDEQ) “List of Screening Levels (ITSL, IRSL, and SRSL)” to identify Initial Threshold Screening Levels (ITSLs), Initial Risk Screening Levels (IRSLs), and Secondary Risk Screening Levels (SRSLs).  Through this review, a facility determines what applicable ITSL, IRSL, and SRSL thresholds apply for use in a subsequent air dispersion modeling analysis.  The air dispersion modeling analysis determines if the TAC emissions associated with a project exceed the applicable ITSL, IRSL, or SRSL.

Notwithstanding the exemptions provided at R336.1224(2)(a) through (d), R 336.1224 (Rule 224) requires that certain new or modified emissions units for which a PTI application is required, and for which any of the following conditions exist, shall not cause or allow the emission of TAC in excess of the maximum allowable emission rate based on the application of T-BACT:

• The maximum allowable emissions rate of a TAC from the proposed new or modified emissions unit or units exceeds 0.1 pound per hour or less for a carcinogen or 1.0 pound per hour for any other TAC, or
• The applicable ITSL determined for the TAC is less than or equal to 200 micrograms per cubic meter, or
• The applicable IRSL determined is less than or equal to 0.1 micrograms per cubic meter.

If T-BACT is required, the applicant must identify and apply the maximum degree of emission reduction which the MDEQ determines is reasonably achievable for each process that emits TACs, considering energy, environmental, and economic impacts, and other costs.  Similar to T-BACT analysis required by the State of Maryland, the procedure for conducting a T-BACT analysis in Michigan involves identification of available control options; performing an analysis of energy, economic, and environmental impacts; and selection of the most effective control alternative not otherwise eliminated to represent T-BACT.

New Jersey

The State of New Jersey’s air toxics risk assessment requirements apply to the following types of emissions sources:

• New and modified sources of air pollution required to have an air pollution control pre-construction permit and that emit air toxics above the thresholds listed in N.J.A.C. 7:27-8, Appendix 1, Table B [Reporting and State of the Art Threshold for HAPs (Potential to Emit)], and
• New and modified sources at major facilities with existing Operating Permits that emit air toxics listed in N.J.A.C. 7:27-22, Appendix Table B, and
• Existing facilities advised by New Jersey Department of Environmental Protection (NJDEP) that they must carry out a facility-wide assessment.

There are two methods of performing such a risk assessment in New Jersey:

• Risk Screening
• Comprehensive Risk Assessment

Risk screening is the most commonly executed type of assessment and is typically performed by NJDEP staff but may be optionally carried out by an applicant prior to application submittal.  The approach includes both first- and second-level screening, where first-level screening essentially overestimates cancer and noncancer risks through its utilization of generalized worst-case assumptions, worksheet calculations, and air impact values (in lieu of air dispersion modeling).  In doing so, sources with emissions of TAC that exceed New Jersey’s risk guidelines, and thereby may pose a significant health risk to its citizens, are identified as requiring closer scrutiny through the second-level screening process.  Second-level screening is a refinement of first-level screening that relies upon stack- and source-specific data, representative meteorological data, and the AERMOD atmospheric dispersion modeling system.  NJDEP staff typically conduct second-level risk screening at the expense of the applicant, but an applicant may also carry out the procedure with verbal approval by NJDEP.   In such cases, submittal of an air quality modeling protocol is sometimes required.

In certain cases, applicants are notified by NJDEP that they must prepare a Comprehensive Risk Assessment (CRA).  Examples of sources that could trigger a CRA include coal-fired power plants, incinerators (e.g., municipal solid waste, hazardous waste, medical waste, etc.), and larger stationary sources. For such cases where a comprehensive risk assessment is requested, the applicant is also responsible for submittal and approval of a risk assessment protocol, and, in the case of certain RCRA hazardous waste combustion facilities, submittal and approval of a multi-pathway risk assessment protocol.  The applicant is also responsible for paying fees to cover NJDEP’s review of a comprehensive risk assessment.

Comprehensive risk assessments involve both air dispersion modeling and, in cases where an ingestion exposure pathway exists, deposition modeling.  They also include a hazard identification step, a dose-response assessment, an exposure assessment, and risk characterization step to be performed consistent with the guidelines presented in NJDEP’s “Technical Manual 1003: Guidance on Risk Assessment for Air Contaminant Emissions.”

Texas

The Texas Commission on Environmental Quality (TCEQ) requires preparation of a Health Effects Analysis through the State’s document “Air Quality Modeling Guidelines.” This Health Effects Analysis establishes off-property Ground-Level Concentrations (GLCs) of contaminants resulting from proposed and/or existing emissions sources and evaluates those GLCs for their potential to cause adverse health or welfare effects against published Effects Screening Levels (ESLs).  The published ESLs are based on an air toxic’s potential to cause adverse health effects, odor nuisances, vegetation effects, or materials damage.

The procedure for performing a Health Effects Analysis is three-tiered. Under the initial Tier I approach, maximum off-property short- and long-term GLCs are compared to the respective ESL for the contaminants under review.  If the maximum off-property short- and long-term GLCs are equal to or less than the ESLs for the contaminants under review, adverse health or welfare effects are determined to be not expected.  If the maximum off-property short- and long-term GCL is above the respective ESL, it is not necessarily indicative that an adverse effect will occur, but does indicate that further evaluation under Tier II is warranted.

The Tier II approach is performed with acknowledgment of whether the locations of the GLCs are industrial or non-industrial.  For industrial receptors, if the maximum off-property short- and long-term GLCs are equal to or less than two times the respective ESLs, adverse health or welfare effects would not be expected.  For non-industrial receptors, if the maximum off-property short- and long-term GLCs are equal to or less than the respective ESLs, adverse health or welfare effects would not be expected.  However, if the maximum off-property short- and long-term GLCs for industrial receptors are greater than two times the respective ESLs, adverse health or welfare effects would be expected.  Similarly, if the maximum off-property short- and long-term GLCs for non-industrial receptors are greater than the respective ESLs, adverse health or welfare effects would be expected.

Tier III is a refinement of the Tier I and II approaches, which rely solely on predicted concentrations.  Tier III goes further by incorporating additional case-specific factors such as land use, magnitude of predicted concentrations, frequency of predicted exceedance, or toxic effect caused by the contaminant to factor in additional information about the potential for exposure and occurrence of adverse health and welfare effects.

Conclusion

Where applicable, state air toxics programs are a required component of many air permitting projects and compliance with the state-specific requirements, as defined by each rule, must be demonstrated to be granted authorization to proceed.  While sharing many basic components, air toxic program interpretation and execution can vary significantly from state to state and a thorough understanding of the applicable program is crucial to a successful permitting project.

ALL4 has conducted air quality modeling studies and risk analyses in support of a variety of regulatory and permitting projects including, but not limited to, state air toxics programs.  We offer extensive experience applying air dispersion models, regional modeling analysis, understanding and interpreting the results, and integrating the results into the permitting process, compliance demonstrations, or strategic planning for future operations. We’ve worked closely with state meteorologists, U.S. EPA regulatory and technical staff, toxicologists, and air dispersion model developers. We understand the technical aspects of the models and the regulations governing the use of air dispersion models.  For questions related to the regulation of air toxics in your state, feel free to contact us.  For specific modeling needs, don’t hesitate to reach out to any of our talented ALL4 modeling team members.

U.S. EPA Approves PADEP’s 2006 SIP Revision Via Direct Final Action

It’s Friday, July 7,2017 and I’m reading Federal Register Vol. 82, No. 129 (my life is very exciting).  As I stand here reading, I’m 37 years, 8 months, and 7 days old.  Page 31464 of Federal Register Vol. 82, No. 129 includes a notice indicating that the United States Environmental Protection Agency (U.S. EPA) is taking direct final action to approve revisions to the Commonwealth of Pennsylvania State Implementation Plan (SIP).  Pennsylvania’s SIP revision was submitted to U.S. EPA by the Pennsylvania Department of Environmental Protection (PADEP) on September 25, 2006, at which time I was 26 years old, 10 months, and 24 days old.  The approved SIP revision includes requirements for Reasonably Available Control Technology (RACT) level controls for certain sources of Volatile Organic Compounds (VOCs) in response to the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS).  The 1997 8-hour ozone NAAQS was promulgated final on July 18, 1997.  On July 18, 1997, I was 17 years, 8 months, and 18 days old.  Barring U.S. EPA’s receipt of adverse written comments, this direct final action will be effective on October 5, 2017.  That means that the entire process from final promulgation of the 1997 8-hour ozone NAAQS to U.S. EPA’s approval of PADEP’s associated SIP revision required just a shade more than 20 years (20 years, 2 months, and 18 days to be exact).

On October 5, 2017 I’ll be 37 years, 11 months, and 5 days old.  If the process associated with the 2008 8-hour ozone NAAQS follows a similar timeline, I’ll be somewhere near 58 years old when a similar action is published in the Federal Register pertaining to the 2008 standard.  I was secretly hoping that I wouldn’t be around to write that blog, but 58 is a little early to be retired.  It’s important to note that this direct final action does not address PADEP’s April 24, 2016 RACT 2 rule that includes RACT-level controls for oxides of nitrogen (NO_X) and VOC in response to the 2008 8-hour ozone NAAQS.

ALL4 has been intimately involved in all things RACT related in Pennsylvania since promulgation of the very first ozone standard on February 8, 1979 (I was negative ~10 months old by the way).  During that time we’ve assisted multiple facilities comply with the RACT rules.  If you have questions regarding this blog, the associated Federal Register notice, RACT in general, or my age 🙂 give me a call at 610.933.5246 x119, or email me at rharding@all4inc.com, or contact Roy Rakiewicz at 610.933.5246 x127, or rrakiewicz@all4inc.com.

PC MACT Carousel

This article is available as a podcast episode on ALL4’s Air Quality Insider

Today (July 25^th) is National Carousel Day.  Ironically, it is also the expiration date of the original 1-year additional compliance alternative for sources required to use a hydrogen chloride (HCl) continuous emission monitoring system (CEMS) to demonstrate compliance with the Portland Cement MACT (i.e., PC MACT or 40 CFR Part 63, Subpart LLL) HCl emission limit.  What is the correlation you ask?  Let me explain…

If you have been following the PC MACT since its promulgation, it has been quite the “ride” and it is not quite done yet.  To fully illustrate my point, here is a historical timeline for PC MACT:

• Promulgation (original rule) – June 14, 1999

• New rule issued – September 9, 2010

• Decision on PCA vs. EPA – December 9, 2011

  • Invalidated and delayed the implementation of the new rule

• Final rule amendments effective – February 12, 2013

  • Set a new compliance date of September 9, 2015
  • General provisions allowed for up to one additional year to comply with the standard (September 9, 2016) upon request

• Final Amendments – July 27, 2015

  • Upheld the compliance date of September 9, 2015/September 9, 2016

• Direct Final Amendment – July 14, 2016

  • Allowed for an alternative compliance demonstration for HCl CEMS until July 25, 2017

• Final Rule – June 23, 2017

  • Extended alternative compliance demonstration for HCl CEMS until the calibration gases become “readily available”

Round and Round

The compliance date for HCl CEMS has been revised over the last seven years mostly because of litigation.  Earthjustice, in its June 29, 2017 comments has already voiced its opinion that the “absence of explanation and record support renders EPA’s decision to further postpone the use of CEMS to monitor compliance arbitrary and capricious.  Further, even assuming that some further extension is necessary, EPA provides no support or explanation for its decision to provide an indefinite extension rather than a time-limited extension, as it did in 2016.”  Therefore, it likely that another litigation may be imminent, thus continuing the circle (or carousel) for a finite PC MACT compliance date.

Up and Down

In addition to litigation, the compliance date has also been extended twice because of the lack of availability of HCl CEMS calibration gases.  As of the date of this Blog, it is my understanding that only low-range calibration gases are available for HCl CEMS, thus, the indeterminant date in the latest final rulemaking.  Maybe this is more of the horse before the cart, but for now I’ll consider it the ups and downs of the PC MACT carousel.

Grab the Brass Ring

So now is the time to grab the brass ring and be ahead of the curve.  Given the uncertainty of when calibration gases will become “readily available”, it is encouraged that cement plants stay informed on the rule and gas availability as well as have compliance plans ready.   My ALL4 colleagues and I have been following PC MACT since its promulgation and know how to keep you in compliance.  If you have any questions on PC MACT or any air quality regulation, please contact us at 610.933.5246.

Reasonably Available Control Technology (RACT 2) Post-Compliance Deadline Happenings

Major sources of NOx and/or VOC (i.e., potential to emit greater than or equal to 100 tons per year of NOx and/or 50 tons per year of VOC) subject to the Pennsylvania Reasonably Available Control Technology (RACT 2) rule had to demonstrate compliance with the applicable RACT 2 requirement or emission limitations by January 1, 2017.  There are few exceptions to this deadline, such as when a facility must install an air pollution control device to meet the applicable presumptive RACT 2 requirement or emission limitation.  In this case, the RACT 2 rule includes a process for proposing and petitioning for an alternative compliance schedule to allow facilities time to engineer, permit, and construct necessary equipment.  Several key post-RACT 2 compliance deadline observations are provided below.

1. It can be estimated that there are more than 75 case-by-case analyses submitted by facilities across six Pennsylvania Department of Environmental Protection (PADEP) regions that require review.  This is a substantial workload for PADEP and has created a RACT 2 backlog.
2. PADEP often issues technical deficiency letters to allow facilities to address deficiencies that PADEP has identified during their review of application documents.  Such letters stop the review clock allowing the source time to respond.  Indirectly, this relieves PADEP of timing obligations.  PADEP has indicated in guidance that when a deficiency letter is issued, the Permit Decision Guarantee no longer applies.  If your facility is issued a technical deficiency letter, the company is obligated to respond to PADEP.  The applicant would respond to the deficiency letter within the timeframe specified by PADEP for that permit application and the review would proceed forward; however, with no guaranteed timeframe.
3. Facilities using continuous emissions monitoring systems (CEMS) to demonstrate compliance with a RACT 2 emission limitation will be required to submit data from January 1, 2017.  Ultimately, facilities will be required to submit the data electronically through the PADEP continuous emissions monitoring data processing system (CEMDPS) platform. However, the CEMDPS system is not yet completely programmed to accept RACT 2 CEMS compliance data from facilities.  The PADEP Continuous Source Monitoring Division is working to develop and implement the necessary upgrades to CEMDPS, so facilities can submit electronic compliance data.  CEMDPS is currently able to be configured for boilers and it is anticipated that programming to accommodate turbines will be completed soon.

Using a CEMS to demonstrate compliance with a RACT 2 emissions limitation is a component of RACT 2 compliance that is somewhat hidden in the shadows and could emerge at any time and cause concern for affected facilities.   Looking ahead, here is what facilities will need to do if using CEMS to comply with RACT 2:

1. Prepare and submit a Phase I monitoring plan through CEMDPS to PADEP for review and approval.  This includes technical specifications on the CEMS, identification of production parameters if applicable.
2. Complete, prepare, and submit additional activities through CEMDPS for PADEP review and approval.  This could include generation of a sample report.  In some cases, a data acquisition and handling system (DAHS) verification may be required.
3. Generate and submit quarterly reports to PADEP through CEMDPS.  This will be required back to the initial compliance date (e.g., January 1, 2017).

Reach out to discuss how your facility will comply with RACT 2 or how to prepare a Phase I monitoring plan.  I can be reached at nleone@all4inc.com or 610-422-1121.

Vacatur of NSPS Subpart OOOOa Stay and More Litigation on the Horizon

This article is available as a podcast episode on ALL4’s Air Quality Insider

(UPDATE 7/14/17): On July 13, 2017, the U.S. Court of Appeals for the D.C. Circuit granted the U.S. EPA a 14-day extension to comply with the court’s earlier decision vacating U.S. EPA’s stay of certain 40 CFR Part 60, Subpart OOOOa (Subpart OOOOa) provisions.  The extension is granted to provide U.S. EPA with additional time to consider its legal options for responding to the vacatur.

(ORIGINAL 7/11/17): We have been writing extensively about recent U.S. Environmental Protection Agency (U.S. EPA) reconsiderations and stays of certain provisions of 440 CFR Part 60, Subpart OOOOa Standards of Performance for Crude Oil and Natural Gas Facilities (Subpart OOOOa).  These actions have been driven by both Presidential Executive Orders and objections raised by industry groups regarding the lack of opportunity to comment on specific provisions of Subpart OOOOa, and have so far focused on the following provisions:

• Fugitive emissions monitoring requirements;
• Professional Engineer (P.E.) certification requirements for closed vent systems; and
• P.E. certification requirements for technical infeasibility determinations associated with routing pneumatic pumps to control devices or processes.

To address the lack of opportunity for comment on these provisions during the Subpart OOOOa rulemaking process, U.S. EPA granted a 90-day stay of these provisions on June 5, 2017 backdated to June 2, 2017.   In addition, on June 16, 2017, U.S. EPA proposed a longer two-year stay of these requirements as well as a second 90-day stay to cover an expected gap between the original 90-day stay and the longer two-year stay.

However, environmental groups challenged U.S. EPA’s authority to issue the original 90-day stay and, on June 5, 2017, requested that the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit block this stay.  Environmental groups argued that the original stay did not meet either of the following two criteria for reconsideration set forth in Section 307(d)(7)(B) of the Clean Air Act (CAA):

1. It was impracticable to raise an objection to the rule during the public comment period; and
2. The objection is of central relevance to the outcome of the rule.

The environmentalists’ challenge was based on the argument that the Subpart OOOOa provisions in question were a “logical outgrowth” of proposed provisions and, in fact, addressed comments made to the draft rule.  They further argued that these provisions are not of central relevance to the outcome of the rule and, therefore, fail to meet the second criteria of Section 307(d)(7)(B) of the CAA.

On July 3, 2017, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of environmental groups and vacated the original U.S. EPA Subpart OOOOa 90-day stay.  The majority opinion agreed that it was not impracticable to raise an objection to the provisions that were stayed by U.S. EPA and, therefore, reconsideration of these provisions was not required or appropriate.

More Litigation on the Horizon from States

Meanwhile, in a June 29, 2017 letter, fifteen states notified U.S. EPA of their intent to sue over the agency’s delay in regulating methane emissions from existing oil and gas operations.  The letter constitutes the 180-day notification required under Section 304 of the CAA for filing litigation to “compel […] agency action unreasonably delayed.”  The states argue that since methane regulations have been issued for new oil and gas operations (i.e., Subpart OOOOa), Section 111(d) of CAA obligates U.S. EPA to establish methane guidelines for existing sources.  The states further argue that not only has U.S. EPA not made any progress towards establishing guidelines, it withdrew the Final Methane Information Collection Request (ICR) for the Oil and Natural Gas Industry, which would have collected information pertinent to establishing the guidelines.  It should be noted that states are specifically arguing for the establishment of methane guidelines under Section 111(d) of the CAA, which would apply to existing sources regardless of location.  This is distinct from, and would potentially go beyond, the Control Technique Guidelines (CTG) issued by U.S. EPA in October 2016, which are intended to apply to volatile organic compound (VOC) emissions from existing oil and gas sources located in ozone non-attainment areas only.

In addition, in July 5, 2017, Attorney Generals from California and New Mexico filed a lawsuit against the Bureau of Land Management (BLM) over its indefinite postponement of the effective date of the Waste Prevention Rule.  The rule was issued by the BLM on November 18, 2016 with an effective date of January 17, 2017, and was intended to regulate and reduce methane leaks from oil and gas operations on federal lands.  However, on June 5, 2017, the BLM published a notice to postpone the compliance date for certain provisions of the rule.  Among other things, the lawsuit argues that the BLM does not have the authority to postpone a rule that has already gone into effect.

Where Does This Leave the Industry?

The July 3, 2017 U.S. Court of Appeals for the D.C. Circuit means that previously-stayed provisions of Subpart OOOOa, including the fugitive monitoring requirements, are once again in effect.  U.S. EPA may appeal the decision but, even if ultimately overturned, operators will need to comply with all provisions of Subpart OOOOa in the meantime.

Continued pushback and litigation, including the examples described in this article, are expected from environmental groups and states.  If successful, the lawsuits may compel U.S. EPA and other federal agencies to issue new regulations and to vacate other recent regulatory stays.  At the same time, U.S. EPA appears determined to reassess many of the Obama administration era rules and is expected to continue to look for legally-defensible mechanisms to do so.

Contact ALL4

ALL4 has been tracking Subpart OOOOa and other oil and gas regulatory developments closely, as well as aiding our clients in complying with these regulations.  If you have questions regarding what requirements are in effect and how they apply to your operations, contact Roy Rakiewicz at 610.933.5246 x127, or rrakiewicz@all4inc.com.

TCEQ Air Quality 101 Blog Series – Title V FOP Renewals

Let’s talk Title V Federal Operating Permits (FOPs) in Texas.  The Title V Operating Permit concept was introduced as part of the 1990 Clean Air Act Amendments (CAAA) and was promulgated as 40 CFR Part 70 – State Operating Permit Programs.  Following promulgation, states could develop their own Major Source Operating Program to include the provisions specified in 40 CFR Part 70 or could defer to the Federal Operating Permit Program as specified in 40 CFR Part 71. The Texas Title V regulations are codified as 30 TAC Chapter 122 – Federal Operating Permits Program.  Title V FOPs are required for major sources, which are sources defined in 30 TAC §122.10(13), as well as other affected sources specified in 30 TAC §§122.120(a)(2)-(4).  Unlike new source review (NSR) permits that are required for new or modified sources on a pre-construction basis, the intent of a Title V FOP is to consolidate the applicable air quality requirements (e.g., emission standards, permit limits, recordkeeping requirements, reporting requirements, etc.) associated with a facility into a single permit. Title V FOPs also provide stakeholders (i.e., businesses, TCEQ, U.S. EPA, the public, local government agencies, etc.) a clear picture of facility operations, and what activities the facility must meet to demonstrate compliance.  Generally, a Title V FOP is authorized for and renewed in five-year increments.  Title V FOP applications and renewals are subject to public notice requirements and typically are reviewed by U.S. EPA.

Read on as the two key authorizations under the TCEQ Title V FOP program: Site Operating Permits (SOPs) and General Operating Permits (GOPs) are discussed.  Continue exploring the blog to find ALL4’s five Title V SOP and GOP renewal tips, which you don’t want to miss.

Site Operating Permits

As stated above, the applicable air quality requirements associated with a facility are consolidated into a single permit encompassing an entire site (e.g., generally applicable requirements, site specific requirements, and emissions unit specific requirements) in an SOP.  In Texas, existing affected facilities were required to submit initial applications by February 28, 1998.  For newly affected facilities, initial operating permit applications are required before the new source or modification can operate. When submitting an initial operating permit application, a facility must meet the 30 TAC §122 procedural requirements, which include having an affected state review, a public notice, an opportunity for comment hearing, and a U.S. EPA review. Title V operating permits typically have a term of five years.

In accordance with 30 TAC §122.241(b), renewals of a SOP must be submitted in a timely manner (i.e., between six and 18 months prior to the existing SOP expiration date) every five years.  As a courtesy, TCEQ sends renewal notification reminders to facilities 12 months before the expiration date of the SOP.  However, if you don’t receive a letter, your obligation to submit a timely and complete renewal application remains.  When submitting an operating permit renewal application, a facility must meet the 30 TAC §122 procedural requirements, which include having an affected state review, a public notice, an opportunity for comment hearing, and a U.S. EPA review.  TCEQ has identified a target of approximately 365 days for issuing renewed SOPs (found here).

An authorized SOP has an organizational structure that includes a table of contents, general and special terms and conditions, attachments and appendices.  Special terms may include specific emissions limitations, monitoring, testing, recordkeeping or reporting requirements.  One example of what a special term may include is a limit on emissions of particulate matter (PM) from any source to not exceed the allowable rates as required in 30 TAC §111.151(a).  Another example of a special term in a SOP is a requirement to comply with the highly reactive volatile organic compound (HRVOC) recordkeeping and reporting requirements of 30 TAC §115.726.  SOP attachments can include such items as permit shields, compliance schedules, applicable requirements summaries, and New Source Review (NSR) authorization references.

General Operating Permits

GOPs are fundamentally different from SOPs.  GOPs contain requirements that are issued to a variety of similar sites and allow a more streamlined Title V permitting process for eligible sources.  To use an analogy: GOPs are similar to minor NSR standard permits (SPs) because GOPs contain uniform requirements that apply to sources defined through a category.  Sources opting for GOPs must agree to “up-front” terms and conditions to be permitted under a GOP and must meet those conditions to operate under a GOP.  GOPs are federally enforceable and are typically broken into sections that include qualification criteria, site-wide requirements, compliance assurance monitoring (CAM) applicability, periodic monitoring requirements, a statement of basis, and a cover letter.  The available GOPs can be found at TCEQ’s website here.  A few examples of GOPs include GOP No. 511 – Oil and Gas GOP for Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties, GOP 517 – Municipal Solid Waste Landfill GOP, and GOP 518 – Air Curtain Incinerator GOP.

Issued GOPs are also required to be renewed every five years and renewal applications must be submitted at least six months, but no earlier than 18 months before the expiration date of the GOP, in accordance with 30 TAC §122.505(c).  As a courtesy, TCEQ is to send renewal notification reminders to facilities 12 months before the expiration date of the GOP, as well.  However, if you don’t receive a letter, your obligation to submit a timely and complete renewal application remains.  When submitting a GOP renewal application, a facility is required to submit all required information through an application cover letter, accompanied by applicable application forms.   For GOP renewal applications, TCEQ has set forth a target of approximately 210 days for issuing renewed GOPs (found here).

Five Title V FOP Renewal Application Tips

When preparing, and submitting a SOP or GOP renewal application it is essential to be aware of TCEQ’s strict information requirements.  ALL4 has renewed countless Title V operating permits over the years and have compiled our top five tips identified below:

1. Ensure that a SOP or GOP renewal application contains correct information to avoid time consuming back-and-forth communications between the permittee and TCEQ.  From identifying any updated company data, site operations, unit specific information, and providing a permit shield, all information must be accurate.
2. Confirm that an authorized individual signs the application, that various components of the application are consistent (i.e., correct emissions limits identified throughout the various application forms, consistent source nomenclature throughout the application, etc.) and that process flow diagrams depict current operations appropriately.
3. Take the time to review permit conditions and assess repetitive requirements, outdated requirements, etc.  Permit streamlining is often overlooked and underutilized in the Title V FOP renewal process, so be sure to propose revised or streamlined requirements that can simplify your life.
4. Identify any newly applicable rules, updated monitoring activities and frequencies so TCEQ can pinpoint how a unit is demonstrating compliance with the appropriate permit requirements.
5. Finally, submit renewal applications on-time and complete.  Untimely or incomplete applications can result in not being granted a permit application shield and could result in the loss of the permit holder’s authorization to operate if the permit expires.

Do SOP or GOP permit renewals cause you to lose sleep?  Does 30 TAC §122 give you nightmares?  ALL4 can alleviate the stress.  ALL4 has experience in working with TCEQ, setting up pre-application meetings and helping negotiate Title V Permit conditions that provide operational flexibility.  If you are in need of TCEQ Title V FOP Operating Permit guidance, please reach out to me at fdougherty@all4inc.com, 281-937-7553 x302.

Proposed Virginia Air Permit Program Fees

Title V of the Clean Air Act (Title V) requires that states develop operating permit programs funded by fees paid by owners or operators of major stationary sources regulated under the programs.  Virginia’s State Air Pollution Control Board (Control Board) recently reviewed the fees associated with the state’s Title V operating permit program and is proposing to increase base emissions fees and update the emissions fee calculation methodology for this program (Proposed regulation can be found here).  The following changes are being proposed:

• The annual fee for calendar year 2018 emissions will be $73.01 per ton of actual emissions, which represents an 18% increase over current rates.
• The annual fee for calendar year 2019 emissions will be $83.96 per ton of actual emissions, which represents a 15% increase over the new 2018 rate.
• The annual emissions fee for calendar years after 2019 will be based on the change in Consumer Price Index between the calendar year for which emissions rates are being calculated and the preceding calendar year applied to the fee for the preceding calendar year.

On July 6, 2017, the Virginia Department of Environmental Quality (VADEQ) will hold a public hearing on the proposed changes.  The proposed update is currently open to public comments, but the July 28, 2017 deadline for comments is fast approaching.  If you have any questions about this proposed regulation change, or need assistance with the preparation of public comments, please contact us.

SPCC Plans – Some Pitfalls of Oil Spill Prevention, Control, and Countermeasure Compliance

This article is available as a podcast episode on ALL4’s Air Quality Insider

Does your facility have a Spill Prevention, Control and Countermeasure (SPCC) Plan?  When is the last time you reviewed it?  Is it up to date?  Have you kept track of all minor facility changes that materially affect potential discharges?  Are you on track to complete your required 5-year plan review?  Have you performed your annual SPCC Plan Training?

SPCC Plans require routine review to maintain the plan’s effectiveness.  This is especially true with the additional requirements for oil storing and producing facilities.  Complacency is probably the number one reason why plan reviews are delayed or forgotten altogether.  Once your plan has been updated, it may only be good until the next change at the facility, which trigger revision deadline.  In my experience in the oil and gas industry, SPCC Plans are considered low risk and therefore fall off your radar if you aren’t careful.  With just a little bit of planning, SPCC Plans can stay current and up to date with minimal stress.

What is an SPCC Plan?  Let’s Review the Basics!

SPCC plans were introduced under the Clean Water Act of 1973 and their requirements were amended by the 1990 Oil Pollution Act.  The implementing regulations are at 40 Code of Federal Regulations (CFR) Part 112 (Oil Pollution Prevention).  Facilities are subject to SPCC requirements if they have the capacity to store more than 1,320 gallons of oil aboveground in containers with a capacity of 55 gallons or more, or 42,000 gallons of oil in completely buried storage below ground.  Once requirements are triggered, facilities must develop and implement an SPCC Plan before bringing oil onsite.  SPCC Plans require secondary containment for aboveground bulk oil storage which accounts for the largest container within the containment area plus adequate room for precipitation.  While subjective, adequate room for precipitation is generally considered to be enough for the largest 24-hour rainfall event in the previous 25 years. 

Key Plan Milestones in your SPCC Plan?

Once your plan has been created, a laundry list of compliance items need to be managed in order to maintain compliance.  There are additional items if you own or operate an oil storing or producing facility to watch out for in 40 CFR Part 112 Subpart B, but the general requirements are on this list which includes: 

• Every five years the entire plan needs to undergo a review
• Every year you must conduct annual SPCC training
• Every year you must conduct an Tank and Berm Inspection
• Every time there is a change in the facility design, construction, operation, or maintenance that materially affects the potential for a discharge (e.g., the oil capacity changes), you have six months to update and recertify the plan

These items are all on different timelines and deadlines are easily missed.  A 5-year review requires a thorough review of your site’s plan, and as a result, can take more than a few hours to complete.  Procrastination could result in missing your deadline for addressing required SPCC Plan amendments.  If the 5-year plan review is not specifically identified on a compliance calendar, consider adding. 

Other easily overlooked requirements are the tank and containment inspections as well as employee training.  Each is required and can sneak up on you given the number of other compliance obligations at a Facility.  The inspections allow operators to discover leaks and determine if tank and containment conditions have changed as part of a spill prevention program.  Annual training is required for all oil handling personnel.  These two tasks were incredibly challenging when working in industry, because without proper planning, you could end up repeating the task and generating extra work.  Driving out to facilities a second time to complete missed inspections, or repeating trainings for the few who missed out on a training, can take more time than originally anticipated.

The last and potentially most frustrating compliance item is the 6-month update.  The rule requires that any change in the facility design or operation that could affect potential spills to trigger an update within 6 months of the change.  The most common cause for overlooking a 6-month update is poor communication regarding facility changes.  If you aren’t aware of facility changes, this could lead to holes in your SPCC Plan. 

Take action!!!

If you haven’t checked on your SPCC Plan, have questions about compliance, or are running close to a deadline feel free to reach out to me at (281) 937-7553!  If you need help complying with SPCC requirements, ALL4 can help save you the headache.