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Your environmental compliance is clearly our business.
MACT SSM - The New Approach “Affirmative Defense”
All4 Inc. Air Quality Training Seminar
Montgomery, AL
December 7, 2010
John P. EganAll4 Inc.
22
MACT SSM – Agenda Where it started How did it change The repercussions The new approach What do we do now
33
Where It Started 1990 CAA Amendments Section
112:• Established original list of 189
hazardous air pollutants (HAPs)• NESHAP for Source Categories – 40
CFR Part 63• Included General Provisions for all
source categories in Subpart A
44
Where It Started 1994 - Part 63 Subpart A General
Provisions included “General Duty” clause to minimize HAP emissions at all times.
Unique provisions for startup, shutdown, and malfunction (SSM) events were included in §63.6(f)(1) and §63.6(h)(1).
55
Where It Started Provisions in §63.6 allowed that
exceedances of MACT standards during SSM events were not a violation of the standard so long as:• SSM Plan established, followed, and
updated as necessary• Requisite maintenance,
recordkeeping, and reporting conducted
66
Where It Started Original 1994 rule included
provisions to avoid creating a “blanket exemption”:• Sources comply with SSM plans
during events• SSM plans be reviewed and approved
by permitting authorities through Title V
• SSM plans be available to the public• SSM plan provisions be directly
enforceable federal requirements
77
How Did It Change
2002 U.S. EPA made changes to General Provisions and removed requirement that SSM plans be incorporated in Title V permit:• Only required to adopt plan and
follow it• Plans could be revised without
formal approval• Plans only available to public on
request
88
How Did It Change In response to 2002 SSM changes
Sierra Club filed petition for reconsideration.
U.S. EPA settled with agreement that SSM plans needed to be submitted with Title V permit application.
99
How Did It Change In 2003 U.S. EPA further relieved
the SSM burden – public now had to make a “specific and reasonable request” to permit authority to review sources SSM plans.
Sierra Club and NRDC both filed suit.
1010
How Did It Change 2006 U.S. EPA went further and
retracted requirement that sources implement SSM plan during an SSM event:• Plan specifics no longer applicable
requirements under Title V• General Duty remained in affect• Reporting requirements would suffice
to justify no exceedance during event
1111
How Did It Change 2006 U.S. EPA also:
• Clarified that reporting and recordkeeping only required when a S/S caused an exceedance and for a malfunction w/potential exceedance
• Eliminated requirement for administrator to obtain copy of SSM plan upon public request
1212
The Repercussions 2008 federal court concluded that:
“Because the general duty is the only standard that applies during SSM events – and accordingly no section 112 standard governs these events – the SSM exemption violates the CAA’s requirements that some section 112 standard apply continuously.”
As a result the court vacated the SSM exemption provisions.
1313
The New Approach U.S. EPA has determined that
MACT standards apply at all times:• Current and/or new standards
established for startup and shutdown conditions
• Malfunctions are subject to standards for normal operations
• “Affirmative Defense” provided for malfunction events
1414
The New Approach Startup and shutdown standards:
• Cement kiln MACT, Subpart LLL final in September 2010 included separate standards for S/S
• Sewage sludge incinerator proposed Section 129 standards October 2010 maintained same standards during S/S
• Six (6) proposed new MACT standards in October 2010 maintained same standards during S/S
1515
The New Approach Affirmative Defense means:
• “In the context of an enforcement procedure, a response or a defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding.”
• Each of the new/proposed MACT rules includes the same definition
1616
The New Approach To establish an affirmative defense must
provide timely notification and prove by a preponderance of evidence that:1. Excess emissions were caused by a
sudden, short, infrequent, and unavoidable failure…
2. Repairs were made as expeditiously as possible…
3. Frequency, amount, and duration of excess emissions were minimized to maximum extent…
1717
The New Approach To establish an affirmative defense
(cont’d):4. If due to bypass, unavoidable…5. All possible steps to minimize
ambient impact were taken…6. Monitoring and controls remained in
operation if possible…7. Actions in response to excess
emissions were documented…
1818
The New Approach To establish an affirmative defense
(cont’d):8. At all times facility was operated in
manner consistent with good practices for minimizing emissions…
9. Owner or operator has prepared a root cause analysis to determine, correct, and eliminate the primary cause of the malfunction…
1919
The New Approach To establish an affirmative defense
a timely notification includes:• Phone or fax Administrator notice
within two (2) business days of initial occurrence of excess emissions
• A written report to the Administrator within thirty (30) days of initial occurrence of excess emissions
2020
What Do We Do Now Comply with all standards including S/S If malfunction occurs and results in
excess emissions – guilty of violation:• Potential relief from civil penalties
using affirmative defense provision• SSM plans no longer required but can
serve as the basis for meeting affirmative defense
• Review malfunction history and eliminate issues
• Be prepared to report exceedances