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NFFS Submits Comments to EPA Regarding Proposed Rule to Amend NESHAP

Friday, September 20, 2019   (0 Comments)
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On July 26, 2019, EPA published a proposed rule to amend the General Provisions of the National Emission Standards for Hazardous Air Pollutants (NESHAP). The Federal Register Notice states that “the proposed amendments implement the plain language reading of the ‘major source’ and ‘area source’ definitions of section 112 of the Clean Air Act (CAA) and provide that a major source can reclassify to area source status at any time by limiting its potential to emit (PTE) hazardous air pollutants (HAP) to below the major source thresholds of 10 tons per year (tpy) of any single HAP or 25 tpy of any combination of HAP.

NFFS offered the following comments on each of the major provisions of the regulatory action:

A. The EPA is proposing to amend the applicability section found in 40 CFR 63.1 by adding a new paragraph (c)(6). This paragraph will specify that a major source can become an area source at any time by limiting its HAP PTE to below the major source thresholds established in 40 CFR 63.2. The EPA is also proposing to amend the definition of “potential to emit” in 40 CFR 63.2 to remove the requirement that limits on emissions be federally enforceable and instead require that any physical or operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is legally and practicably enforceable (i.e., “effective”). The EPA is also proposing to include in 40 CFR 63.2 the definitions of legally and practicably enforceable. By proposing this amendment, the EPA is allowing for the use of non-federally enforceable limits (e.g., state only enforceable limits) to be recognized as effective in limiting a source’s potential to emit for purposes of CAA section 112 applicability provided those limits are legally and practicably enforceable.

The EPA is correct in rescinding the Agency’s previous OIAO policy and reverting to the plain reading of the regulation as intended by Congress. The criteria are clearly defined within the rule to differentiate between a major source and an area source, and this action aligns the EPA with the clear intent of the rule as written. The ability of a firm to reclassify from a major source to an area source, and therefore be subject to less expensive and time-consuming area source requirements vs major source requirements, is an important economic incentive to firms to reduce their PTE to below major source thresholds.

Amending the definition of ‘potential to emit’ to include effective physical and operational limitations of a major or area sources to emit a pollutant, such as pollution control equipment and operational restrictions, is proper and necessary. Because the classification of a major vs area source is determined by the potential to emit HAPs above the major source thresholds, it is proper to consider all emission limitations that are effective when considering the PTE.

B. To address the issue of compliance time frames for sources that reclassify from major source status to area source status after the first substantive compliance date of an applicable major source NESHAP standard, the EPA is proposing regulatory text in the new provision at 40 CFR 63.1(c)(6)(i) under which major sources that reclassify to area source status become subject to applicable area source requirements in 40 CFR part 63 immediately upon becoming an area source in those situations where the first substantive compliance date of the area source requirements has passed. For sources that reclassify from major to area source status and then revert back to their previous major source status, the EPA is proposing to add a new provision in 40 CFR 63.1(c)(6)(ii)(A) to specify that upon reverting back to major source status, a source must meet the major source NESHAP requirements at the time that those requirements again become applicable to the source. The EPA is proposing to add a new provision at 40 CFR 63.1(c)(6)(iii) to address the interaction of the reclassification of sources with enforcement actions arising from violations that occurred while the source was a major source subject to major source requirements. Specifically, we are proposing that status reclassification from major source to area source does not affect a source’s liability or any enforcement investigations or enforcement actions for a source’s past violations of major source requirements that occurred prior to the source’s reclassification.

Given the intent of the EPA to adopt the plain reading of NESHAP standard, when a firm reclassifies their status from major to area source, or from area source to major source, it is appropriate that the EPA include language stating that the requirements of area and major sources apply to the new classification on the date that those requirements become applicable to the source.

Given that it is well understood that some firms inappropriately notified the EPA of their status as a major source under the NESHAP standard, and as a result, have been subject to major source requirements even though their emission of HAPs is below the major source threshold. This rule will provide the opportunity for those firms improperly registered as major sources to correctly reclassify themselves as area sources and therefore be subject to area source GACT.

Furthermore, it is appropriate for the EPA to propose that status reclassification does not affect a source’s liability for a source’s past violations of major source requirements that occurred prior the source’s reclassification. It is also appropriate for the EPA to consider the misclassification of a major source instead of the appropriate area source classification, and the control technologies required of each population (MACT vs GACT), and to examine a past violation to determine if the source actually violated the requirements of the classification under which the firm SHOULD have been registered.


C. The EPA is proposing to amend the notification requirements in 40 CFR 63.9(b) so that an owner or operator of a facility that reclassifies must notify the Administrator of any standards to which it becomes subject. With this amendment, the notification requirements of 40 CFR 63.9 will cover both situations where a source switches from major to area source status, and where a source switches from major, to area, and back to major source status. The EPA is also proposing to clarify that a source that reclassifies must notify the EPA of any changes in the applicability of the standards that the source was subject to per the notification requirements of 40 CFR 63.9(j). The EPA is also proposing to amend the notification requirements in 40 CFR 63.9(b) and (j) to require the notification be submitted electronically through the Compliance and Emissions Data Reporting Interface (CEDRI). The EPA is also proposing to amend the General Provisions to add 40 CFR 63.9(k) to include the CEDRI submission procedures. The EPA is also proposing to remove the time limit for record retention in 40 CFR 63.10(b)(3) so sources that obtain new legally and practicably enforceable PTE limits are required to keep the required records until the source becomes subject to major source NESHAP requirements. The EPA is also proposing to amend 40 CFR 63.12(c) to clarify that a source may not be exempted from electronic reporting requirements.

The requirement for notification under 40 CFR 63.9(b) for an owner to notify the EPA when it reclassifies under the NESHAP standard and becomes subject to a different standard is reasonable and appropriate. It is furthermore appropriate for the Agency to require said notification to be submitted electronically through CEDRI.

The record retention time requirement removal is similarly reasonable and appropriate.


D. The EPA is proposing to amend the General Provisions applicability tables contained within most subparts of 40 CFR part 63 to add a reference to a new proposed paragraph 63.1(c)(6) discussed above. The EPA has identified one general category of regulatory provisions in several NESHAP subparts that include a date by which a major source can become an area source. Accordingly, in this action we are proposing to revise these provisions by removing such date limitations. The provisions we are proposing to revise are: 40 CFR part 63, subpart QQQ at 63.1441; 40 CFR part 63, subpart QQQQQ at 63.9485; 40 CFR part 63, subpart RRRRR at 63.9581; and Table 2 of 40 CFR part 63, subpart WWWW. We are also proposing to revise several area source NESHAP subparts that include a specific date for an existing source to submit the initial notification because the date specified in the regulations has passed. The provisions we are proposing to revise are: 40 CFR part 63, subpart HHHHHH at 63.11175; 40 CFR part 63, subpart XXXXXX at 63.11519; 40 CFR part 63, subpart AAAAAAA at 63.11564; 40 CFR part 63, subpart BBBBBBB at 63.11585; and 40 CFR part 63, subpart CCCCCCC at 63.11603. We request comments on whether there are other NESHAP subparts that contain the same type of general provisions of those discussed above that will need to be revised (Comment C-1). (1)

It is appropriate for the Agency to revise the NESHAP subparts that include a specific date for an existing source to submit their initial notification by removing those date limitations.

The comments above were drafted and submitted by the NFFS Government Affairs Committee (GAC) on behalf of the Non-Ferrous Founders’ Society. All interested NFFS members are invited to attend the GAC’s monthly meetings, usually held on the third Thursday of every month. To obtain information about the next scheduled meeting, or for general information about the NFFS government affairs program, please contact Jerrod Weaver at jerrod@nffs.org or 847-299-0950.

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