Date: Nov 01, 2002
Under a proposed settlement agreement between the US Environmental Protection Agency (EPA) and the Sierra Club, more than 500 paper, film, and foil coating facilities may be required to submit revisions to their Clean Air Act Title V permits a year earlier than anticipated.
The US EPA proposed the paper and web coating maximum achievable control technology (MACT) standard for major sources of hazardous air pollutants that are "engaged in the coating of paper, film, metallic foil, and other web surfaces," but it failed to finalize the regulations by the Nov. 15, 2000, statutory deadline. Consequently, converters became subject to the Clean Air Act's "MACT hammer" provisions under this and other relevant MACT standards (such as the industrial boiler MACT) for which EPA failed to meet the statutory deadline.
Practically speaking, converters had the obligation to determine whether they are subject to the MACT hammer provisions by May 15, 2002. Some converters may have received a letter from their state requesting confirmation that they are subject to the paper and web coating MACT. Others may have received a notice of applicability. In either case, all major sources of hazardous air pollutants (HAPs) potentially subject to a backlogged MACT were required to submit an air operating permit application to their state.
On April 5, 2002, EPA set promulgated regulations that split the application process in two. The first part of the application was due May 15, 2002, or within 30 days of receiving a notice of applicability from the state. The second, more comprehensive part is due by May 15, 2004. The proposed settlement, however, would require EPA to reverse the April rulemaking by accelerating the part-two application deadline by a year, to May 15, 2003. States and facilities likely would face serious burdens meeting the new schedule. Further complicating the issue for converters and other industries, they also may be subject to the industrial boiler and process heater MACT, another backlogged MACT standard.
From all indications, EPA intends the industrial boiler MACT to reach all boilers and "indirect-fired" process heaters, which it defines as any enclosed device using controlled flame combustion whose primary purpose is the recovery of thermal energy in the form of steam or hot water. The boilers or process heaters themselves do not have to be a major source of HAPs - the MACT will apply to all boilers and process heaters located at a major source of other HAPs, regardless of the boiler or heater's size.
As is the case with the paper and web coating MACT, states must set emission limitations for industrial boilers and process heaters in a facility's air permit that are equivalent to the MACT limits EPA would have set. Since EPA has not yet proposed the industrial boiler MACT, states currently have limited information with which to set the minimum stringency level for the MACT, otherwise known as the MACT floor. The states could use an EPA-prepared MACT floor determination if one was available. Instead, they must conduct a MACT analysis to identify the MACT floor using all "available information," which coincidentally, EPA revised in April to mean any information that is available as of the date on which the first Part Two MACT application is filed for a source category in the state.
The settlement agreement, in fact, represents a major change in the April regulation, and industry discussions with EPA on this turnabout are ongoing. It is likely a decision by EPA to accept or reject the settlement agreement will come soon.
In the meantime, the notion of foreclosing the amount of information states will have to conduct a MACT floor determination creates the potential for further accelerated permitting, as a practical matter. This issue presents an interesting and potentially far-reaching wrinkle in the continuing development of MACT standards that bears watching.
Reproduced with the permission of Paper, Film & Foil CONVERTER magazine (312.726.2802). Copyright © 2002 by Intertec Publishing. All rights reserved.
Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; email@example.com; PackagingLaw.com.