U.S. EPA Hazardous Air Pollutant Permitting Process-Clarifications, Regulatory Updates, and Deadlines

U.S. EPA has proposed to amend the General Provisions for National Emission Standards for Hazardous Air Pollutants (NESHAP). The proposed amendments relate to both to applicability and deadlines associated with the addition of a compound to the list of hazardous air pollutants (HAPs) under the Clean Air Act (CAA) and a facility’s classification for air quality permitting and regulatory purposes. The action (referred to as the HAP infrastructure rule) was proposed in the Federal Register on September 13, 2023 and can be found here. This action focuses on addressing the following three issues:

1. Whether already promulgated NESHAP would apply to a newly listed HAP.
2. Permitting implications for facilities that become major sources under CAA section 112 solely due to the addition of a new HAP to the HAP list (hereinafter Major Source Due to Listing or “MSDL” facilities).
3. The applicable emission standards (e.g., new source standards or existing source standards) and the compliance deadlines for an MSDL facility that result from the applicability of a major source NESHAP¹.

The CAA requires U.S. EPA and states with delegated authority to regulate emissions of HAPs. The original list from 1990 included 189 pollutants. Aside from a few clarifications and minor changes, that list has been relatively static. In fact, those changes were largely in the category of removals from the list. However, in January 2022 U.S. EPA issued a final rule to add 1-Bromopropane (n-propyl bromide or NPB) to U.S. EPA’s list of HAP; this was the first HAP addition to the list since it was developed over 30 years ago. If you are curious about this, see my article on that topic and some of the anticipated implications at the time.

How do I know if the HAP infrastructure action will impact me and to what extent?

The impact will vary from little or no impact to somewhat substantial impact (e.g., an air permitting action triggered) depending on your facility and its operations. Here are some thoughts that might help you consider if this impacts you.

• Am I currently a major source of HAP or an Area Source of HAP? If you are an area source, keep reading.
• Does my operation currently use NPB or another material that may be classified as a HAP in the future? If yes, keep reading.
• What are my current actual and potential HAP emissions, and do I have a Title V operating permit already?

If your facility is an area source of HAPs, and adding emissions from a newly listed HAP to current facility HAP emissions will cause facility-wide emissions to meet or exceed either 10 tons per year of an individual HAP or 25 tons per year for combined HAPs, the HAP infrastructure rule will impact your facility. A major source of HAPs is a facility with a potential to emit (PTE) at or above either 10 tons per year of an individual HAP or 25 tons per year for combined HAPs from the facility. In the previous example of an existing area source facility, not only will your facility become a major source under Title V of the CAA and require a Title V Operating Permit (if your facility is not otherwise required to have a Title V Operating Permit), you may become subject to major source NESHAP rules that did not previously apply. Complying with applicable requirements for a major source NESHAP can be complicated. Determining what requirements apply, developing an adequate compliance demonstration, and understanding implementation timing can have a large impact on operations (and sometimes capital costs).

What does the HAP infrastructure action mean to me?

There are several situations that could result in the need for a facility to take action. Some examples of requirements that you may need to meet include, but are not limited to, the following:

Note that U.S. EPA has proposed that a newly listed HAP is not regulated under any NESHAP promulgated before the effective date of the listing of that new HAP. For example, if a new listed HAP is also a VOC and the NESHAP regulates VOC as a surrogate for organic HAP, or if a coating regulation limits the total HAP that may be contained in a coating, the newly listed HAP is not covered by the NESHAP until EPA reviews the rule and either establishes new standards or revises previous standards to include the newly listed HAP. EPA has also proposed that facilities that become MSDL are existing sources, not new sources, for purposes of determining which standards in a NESHAP might apply.

It’s important to note that requirements will be specific to your situation and there are other considerations besides those listed above. The implications of the rule, should it impact your facility after finalization, could fundamentally result in changes to how you operate (e.g., changes to applicable requirements and necessitating changes to your air quality operating permit). Due to this and the lead time to address the changes, the action warrants a strategic assessment of future business and operating plans as it relates to air quality-related regulations and permits. Should you have interest in preparing comments on the draft infrastructure rule, comments are due by November 13, 2023. U.S. EPA is likely to get significant comment on their proposed compliance timing requirements for MSDL facilities and will likely get requests to clarify requirements in situations they have not yet addressed. Note that U.S. EPA plans to address other related issues in the future, so this proposal is not likely to be the last thing you hear on this subject.

If you are curious about this topic and would like to discuss its potential impacts to your facility or need assistance preparing formal written comments, contact Nick Leone at nleone@all4inc.com or 610-422-1121.

¹See U.S. EPA Federal Register Notice 62711: https://www.govinfo.gov/content/pkg/FR-2023-09-13/pdf/2023-19674.pdf