Clean Air Act Developments


Section 112(j) of the federal Clean Air Act requires that major sources of hazardous air pollutants (HAP) submit an application for a Title V Operating Permit Revision if the source is a member of a source category for which the federal Environmental Protection Agency (EPA) has not adopted a Maximum Achievable Control Technology (MACT) standard within 18 months after the deadline for development of that standard.  EPA has determined that it will not meet that 18 month deadline for a large number of source categories of HAP.  Consequently, EPA has adopted rule revisions, which the TNRCC will implement, requiring submission of an application for a Title V Operating Permit Revision in a two-step process.
The first step requires submission of a notification with basic information regarding the source by May 15, 2002.  This notification must be sent to the TNRCC’s Air Permits Division, with copies to the appropriate TNRCC regional office, the local air pollution control program, and the Air Permit Section of the U.S. Environmental Protection Agency’s Region VI Office.  The TNRCC has developed a form and instructions that detail these requirements and list the source categories for which this notification will be required.  The internet address for the form is:  If you are a major source of HAP, you should examine this document to see whether you are in the source category for which the notification is required.  Major sources of HAP are those sources (generally, an entire plant site) that emit or have the potential to emit 10 tons per year or more of any one HAP or 25 tons per year or more of all HAPs combined.
The second step of the application process will require the submission of a full application for the permit revision, including providing all information necessary for the TNRCC to determine what should constitute MACT for the source.  The second part of the application will be due May 15, 2004.  EPA, however, expects to be able to adopt all MACT standards for these source categories prior to May 15, 2004, which would result in an alteration of the requirements for the May 15, 2004 submission.  You should be aware, however, that EPA has been sued by the Sierra Club, which argues that under the federal Clean Air Act, EPA must demand that a complete application be submitted by May 15, 2002, not 2004.  An adverse court decision could cause EPA to direct that a complete Title V Permit Revision application be submitted prior to May 15, 2004.
On April 26, 2002 the Texas Register published the TNRCC’s proposed revisions to rules that regulate air quality emissions occurring as a result of upsets, maintenance, startup or shutdown activities.  These proposed rules are being considered in response to requirements in the Sunset Bill in the last session of the Texas Legislature.  The proposal largely consists of clarifications of the existing requirements, using the term “emission events” to describe these types of occurrences, and the imposition of significant new requirements.
The proposed new requirements include the submission of additional information and more detailed information regarding each emission event, and the electronic submission of notification reports regarding emission events by businesses other than small businesses (beginning January 1, 2003).  The proposal also mandates TNRCC initiation of enforcement action for persons who fail to report emission events, as well as for the underlying emission event itself.  The proposal also specifies criteria for determining “excessive emissions events” and “chronic excessive emission events.”  Excessive emission events would be determined on a case-by-case basis utilizing criteria set forth in the proposed rule.  Chronic excessive emission events would pertain to a site that has two or more excessive emission events in five years.  A notification that a site has excessive emission events results in the owner or operator of the site being required to take action to reduce emissions.  A determination that a site has chronic excessive emission events would be made by an order of the Commission following the recommendation of the Executive Director, and could require the owner/operator to take action to reduce emission events including submission of a corrective action plan (CAP).
The proposed rules are available on the TNRCC’s website.  There will be a hearing on the proposed rules on May 21, 2002 at 10:00 a.m. at the TNRCC’s Austin office, Building F, Room 2210.  Written comments regarding the proposed rule are due by 5:00 p.m., May 28, 2002.
EPA has released guidance indicating that it considers that releases from grandfathered sources (those not required to have a permit) generally do not qualify for the federally permitted release exemption from the reporting requirements for emission releases under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).  EPA notes, however, that even if unpermitted, a source that is subject to federally enforceable control regulations issued under the Clean Air Act provisions cited in CERCLA may still qualify for the federally permitted release exemption.  The EPA guidance was published in the April 23, 2002, Federal Register (Volume 67, Number 78, pages 19750-19752).
We would be pleased to answer any questions you may have, or provide you assistance in addressing these matters.  Please call Jim Braddock at 512.867.8462 for assistance.

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