The Hammer Falls Again as U.S. EPA Proposes Revisions to “MACT Hammer” Regulations
Posted: January 18th, 2012Author: All4 Staff
What is the “MACT Hammer”?
As part of the Clean Air Act (CAA) Amendments of 1990, Congress established a list of source categories and subcategories for which U.S. EPA was tasked to develop new Maximum Achievable Control Technology (MACT) standards, and also created deadlines by which U.S. EPA was to have promulgated the new MACT standards. Congress added section 112(j) to the CAA to address situations where U.S. EPA failed to promulgate a new MACT standard by the deadlines set forth by Congress in the CAA. The section 112(j) standards are also known as the “MACT hammer” requirements. Facilities with operations affected by the MACT hammer were required to submit permit applications beginning 18 months after such deadlines passed. Federal and State permit writers were then required to determine, on a case-by-case basis, emission limitations equivalent to MACT, had an emission standard been promulgated in a timely manner as required under the CAA.
On March 30, 2010, U.S. EPA proposed to amend the 40 CFR Part 63, Subpart B rules governing case-by-case emission limits for major sources of hazardous air pollutants (HAP). The proposed revisions address the applicability and implementation of section 112(j) of the CAA and streamline the process for establishing case-by-case emission limits in the event of the complete vacatur of a section 112(d) rule (i.e., a MACT standard). U.S. EPA is also proposing to remove some existing 112(j) requirements that are obsolete.
Why is U.S. EPA revising section 112(j)?
Section 112(j) was enacted to ensure that major sources of HAP emissions would be subject to case-by-case MACT standards even if no national MACT standards were in place after the specific deadlines established pursuant to the CAA. Although U.S. EPA has promulgated MACT standards for all of the source categories mandated by Congress, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) has vacated several MACT standards in their entirety. Following vacatur, questions were raised as to whether the section 112(j) requirements should apply to those sources that had been subject to the MACT prior to vacatur.
One interpretation is that the section 112(j) case-by-case MACT requirements do not apply to the previously affected sources since U.S. EPA had originally met its obligation to promulgate a MACT standard by the deadline set by Congress. Others have argued that a vacatur is the legal equivalent to the rule never having existed in the first place, and therefore the section 112(j) case-by-case MACT requirements do apply. Since the vacatur of several MACT standards, many State agencies and facilities have requested guidance from U.S. EPA regarding the applicability of the case-by-case MACT standards found in 112(j). 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.
My facility was subject to a vacated MACT standard. What would U.S. EPA’s revisions mean to me?
Case-by-case MACT permit applications meeting the requirements of 112(j) are currently submitted in two (2) parts. Existing regulations require a Part 1 application to be submitted 30 days following U.S. EPA’s failure to promulgate a rule, with the Part 2 application due 60 days after the Part 1 application is due. The proposed rulemaking would eliminate the two-part permitting process and instead require a facility to submit a case-by-case MACT application 180 days following the vacatur of a rule. U.S. EPA believes that 180 days is sufficient since the facility would have already developed the information needed for the application during the development of the now-vacated rule. For those facilities that were subject to the PVC, Brick, Clay Ceramics, or Boiler MACT, applications would be due 90 days following the final publication of the revisions in the Federal Register. U.S. EPA believes that 90 days is more than enough time for these sources since they have had over 18 months to “consider” submission of a case-by-case application since the aforementioned MACT rules were vacated.
If my source is no longer a major source, will I be subject to section 112(j)?
As proposed, the requirements of 112(j) would apply to “major sources that include, as of the section 112(j) deadline, one or more sources in a category or subcategory for which there is no section 112(d) emission standard in place on or after the section 112(j) deadline.” For those sources that were previously subject to one of the vacated MACT regulations, the section 112(j) deadline would be 90 days after the promulgation date in the Federal Register, or the date by which the source’s permitting authority has requested in writing a section 112(j) permit application. For any other major source in a listed source category or subcategory, the section 112(j) deadline would be 18 months after the date of vacatur of a MACT regulation. Based on U.S. EPA’s proposed rule, a facility that has reduced its actual HAP emissions in order to comply with a MACT standard prior to vacatur could request a federally enforceable permit condition to become classified as a synthetic minor source of HAP. As a minor source of HAP, the facility would not be subject to section 112(j) case-by-case MACT requirements and could potentially avoid being subject to any replacement MACT regulations promulgated by U.S. EPA to replace the vacated MACT regulation.