4 The record articles

You are NOT Subject to a NESHAP Standard…Now What?

Posted: July 23rd, 2013

Author: All4 Staff 

With all of the activity surrounding National Emission Standards for Hazardous Air Pollutants (NESHAPs) lately (boilers, internal combustion engines, and a slew of new and sometimes obscure area source standards), many environmental professionals have been able to secure a moral victory by determining that a given NESHAP does not apply to a unit or units at their facility. 40 CFR Part 63 does not require the submittal of a notification of “negative applicability” to a state agency or U.S. Environmental Protection Agency (U.S. EPA) regional office. However, when an auditor or an agency representative comes to your facility and questions about the applicability of a given NESHAP, what will your response be? Sure, your verbal explanation of your determination will likely be thorough and technically complete. However, what do you have in your facility’s files to substantiate your verbal position? Remember the old expression – if it’s not documented, it didn’t happen? When you get a break during your busy day, take a look at 40 CFR §63.10(b)(3) and you might be surprised at what you read.  In that paragraph, you will read about the recordkeeping requirements related to your “negative applicability” determination for a NESHAP. Specifically, the following elements are required when an owner or operator determines that a source is not subject to a relevant standard because of limitations on the source’s potential to emit or an exclusion:

  • The owner or operator must keep a record of the applicability determination on site at the source for a period of five (5) years after the determination, or until the source changes its operations to become an affected source, whichever comes first.
  • The record of the applicability determination must be signed by the person making the determination and include an analysis (or other information) that demonstrates why the owner or operator believes the source is unaffected (e.g., because the source is an area source for a standard that applies only to major sources). The analysis (or other information) must be sufficiently detailed to allow the Administrator to make a finding about the source’s applicability status with regard to the relevant standard or other requirement.

So go ahead and celebrate that you are not subject to a certain NESHAP. Just please remember to document your determination in your files so you can share the good news with those who may ask!


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