M inimumbenefit at maximum

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1 186 SAFETY & ENVIRONMENT Is there life after the 1990 CAA Amendments? M inimumbenefit at maximum cost, loss of operating Ilexibility and the threat of criminal enforcement arc perhaps the most wide-ranging criticisms of the 1990 Amendments to the Clean Air Act (CAA). It is estimated that the 1990 Amendments to the Clean Air Act will impose up to $100 billion in compliance costs on American business every year. A recent ankle in The \Vall Street Journal, "An Illegal Pleasure: the Smell in the Air of Bread Being Baked-c-Big Bakeries Emit Ethanol, A Pollutant That States Are Being Pressed To Cut:' illustrates some of the unintended consequences that result from the Amendments. The Wall Street Journal told of the woes suffered by the American Bakers' Association and their member bakeries. The bakers complained that throughout the United States the Environmental Protection Agency (EPA) (referred to by the bakers as the "Yeast Police") require commercial bakeries to install catalytic oxidizers, "9 tons of steel the size or a pickup truck," which cost $4.5 million per bakery to install and $2.5 million a year to maintain. The EPA requires the oxidizers to reduce ethanol emissions. Experts contend that "this extraordinary effort 10 reduce ethanol emissions actually produces very little environmental benefit." However, as the bakers are learning, the public policy battle is now over and industry must comply with the new amendments to the CAA. The sweeping nature of the 1990 Amendments (with the attendant cost or compliance) and the threat of criminal prosecution combine to make the 1990 Amendments a feature of the regulatory landscape no business can ignore. In order to respond effectively to the 1990 Amendments, it is necessary "The sweeping nature of the 1990 Amendments (with attendant cost of compliance) and the threat of prosecution combine to make the 1990 Amendments afeature of the regulatory landscape no business can ignore. " to understand the general structure of the Clean Air Act and the regulatory environment created by the Clean Air Act and then to develop a strategy for compliance. The structure of the Clean Air Act The CAA of 1970 was the first modern federal environmental law (I). This Act mandated that states develop and implement air quality regulations. Under the authority of the 1970 Clean Air Act, the EPA adopted national ambient air quality standards (NAAQS) (2).These standards established criteria for sulphur dioxide, particulate matter, nitrogen dioxide, carbon monoxide, ozone and lead (3). These NAAQS are implemented through state implementation plans (SIPs) (4). The SIPs are regulations specifying emission limitations designed to attain and maintain the NAAQS. The SIPs are developed by the states and submitted to the EPA for approval. Once approved. the standards are enforced by both the state and federal government. The 1970 Act also dealt with emissions from moving sources and established tailpipe standards for emissions from motor vehicles (5). The EPA was given authority to establish standards for fuels and fuel additives to protect emission control devices (such as cat- alytic conveners) used in motor vehicles and otherwise to protect the public health (6). The original act and subsequent amendments include provisions for enforcement and judicial review of any violation. Violations of the act are subject to civil and criminal penalties in a government-initiated enforcement action as well as "citizen suits" to enforce the requirements of the statute (7). At one time, criminal prosecution for violation of environmental statutes was uncommon, but it is becoming increasingly common. The CAA was amended in 1977 to address the fact that the NAAQS in many cases were never attained. The 1977 amendments required the standards to be attained by 1982 with, in some cases, extensions to The 1977 amendments also added a new "Part D" to deal with nonattainment. Pari D required all existing major sources of the identified pollutants in nonattainment areas to install and use reasonably available control technology (RACT) (8). The 1977 amendments also required any major new source to obtain pre-construction permils before constructing a facility in a nonattainment area. Part 0 Construction Permits mandated that the "lowest achievable emission rate" be met or the construction permit would not be issued to a facility in the nonattainment area. The 1977 amendments also crear- (continued on page 188) INFORM, Vol. 6, no. 2 (February 1995)

2 168 SAFETY Be ENVIRONMENT Since the 1977 Amendments, there has been additional debate over three aspects of the Clean Air Act. First, emission of pollutants thought to contribute acid rain; second, the hazardous air pollutant program; and third, failure to attain the air quality [conunuedfrom page /86) standards in certain areas. with the intention of increasing the ability of EPA, the state and even citizens to enforce the requirements of ed a new program, "Pari C," to prevent significant deterioration of air President Bush signed the 1990 the CAA. Operating permits may The 1990 Amendments quality in other areas. Part C Amendments to the CAA on November 15, These Amendments applicable to the stationary source also clarify what requirements are requires pre-construction review and permits for major new sources greatly revised and restructured the under the act and what the specific of the pollutants even in areas that operation of the CAA and are the source's responsibilities are to meet or exceed the air quality standards. In these "clean" areas, the act cerning the scope and substance of the permit also requires payment of a result of intense legislative action con- achieve compliance. The operating requires that a facility use the "best Act (II). fee, which is available to the state as available control technology" Before the 1990 Amendments, a source of revenue to fund the (BACT) in new construction (9). In permits were required only for new state's CAA program. addition to these Pari C requirements, SIPs in "clean" areas also ing facilities. There was no mecha- Title V Operating Permit, is, on a construction or modification to exist- This new feature of the CAA, the impose maximum allowable "increments" or increases in the concen- inspections, to enforce emission cant change and the one that requires nism, other than periodic field practical level, the single most signifitration of the specific pollutants that standards. This approach was the greatest attention by manufacturers and industrial cannot be exceeded (10). changed by one of the most signifi- operations. cant and sweeping amendments to the CAA- Title V. Title V requires that "significant" stationary sources of air pollution obtain a federally enforceable operating permit from the state enforcement agency. The operating permits were designed The Title V operating permit program The concept of an overall operating pennit for a facility is a concept that the 1990 Amendments borrow from the Clean water Act. The Title V EOON KEU.ER.1nc. P.O. Box:: 91'1 Allen. Te,,"s Phor\e: (21'1) n7 3lYJ0/' '1-2~ - Fax: (2''1) EGON KELLERGMBH&CO P.O.Box; D Remscheid} Germany Phone: Telex: Fax: & D PARTS ROCESSING S Cotton Ginning Cotton Seed o.iinting Oehulling P,rb Screw Pres, P'r1' Screw Preues.,, - :00 INFORM, Vol. 6. no. 2 (February 1995) For in'ormaflon circle 1109

3 189 operating permit program was expressly modeled after the Clean Water Act (12), The theory is that the operating permit creates a unique, expressly tailored regulatory environmental document (albeit a very long document) that sets forth all responsibilities and obligations of the specific facility. The facility, by reference to this document, can more clearly understand its duties and, conversely, the EPA can more aggressively tailor the CAA to the specific facility and pursue enforcement of any violation. In addition, depending on the size of the facility, the general public can comment on the permit and emission standards. The regulated community, the state environmental enforcement agencies and the EPA are now all in a transition period during which Title V permit programs are being developed by the states. Any organization that is potentially affected by the CAA should engage in several specific steps to determine whether it is. in fact, subject to the Act and. if so, what steps need to be taken in order to comply with the CAA requirements. The first step is to determine whether or not a facility is subject to the CAA. By its own terms. Section 502(a) specifies that the permining program covers sources that come within the following six categories: (a) Sources under the acid rain provisions of TItle IV emitting pollutants that are precursors to acid rain and expressly include the 110 listed electric utility power plants noted in section 404 of TItle IV, as well as other electric utility power plants under the reach of the acid rain control program; (b) "Major Sources" specified in section 112, which are defined as sources with the "potential" to emit 10 tons per year of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants. The "Hazardous Air Pollutants" are specified in the act and are listed below as Appendix A. (Hydrogen sulfide initially was listed as a Hazardous Air Pollutant, but by special act of Congress was removed from the Hst.); (c) Major sources of air pollutants with the potential to emit more than 100 tons per year of "criteria" air pollutants; (d) Any source required to have a permit under Pan. C or Part 0 of TItle I (Pans C and 0 of Title I are discussed above); (e) Any source subject to regulation under Section III. "New Source Performance Standards," or Section "If a facility is subject to the act, an analysis should be conducted to determine whether it is possible to opt out of the act." 112, "National Emission Standards for Hazardous Air Pollutants;" and finally. (f) Any other source designated in regulations issued by the EPA Administrator. The EPA has detennined las it is allowed to do under Section 502(a)] that certain nonmajor sources are currently exempt from the permit program. Two permanent exemptions have been granted for new residential wood heaters and asbestos demolition and renovation activities (13). If a facility or source is subject to!he act, an analysis should be conducted to determine whether it is possible to opt out of the act. It is possible that steps can be taken to reduce or modify the activity of the facility that would cause it not to be subject to the act. If so. the facility should opt out of the act. If a facility is subject to the act. it is necessary to determine to what extent the act requires a permit. whether the facility would constitute a major source that would require a sitespecific permit under Pan. 70 or if the facility could quality for a smallsource general permit. Once a facility has detennined that it is subject to the penniuing requirement, the next question is, "what type of permit is required." General permits are available to small sources. A general pennit is a single document that can cover a category or class of many similar small sources. A general permit will be available to small sources that do not require the more site-specific Part 70 permit. However. it should be noted that if a "small source" has the potential for generating emissions above the Part 70 threshold, even though its actual emissions are well below the limit, it may be required to obtain a Part 70 sitespecific pennit. (Small sources subject to general permits may receive a sitespecific letter or certificate depending upon the state program.) Second. the facility should conduct an inventory of emissions. In conducting the inventory and collecting data necessary to determine the facility's emissions, it is important to follow the correct sampling and reporting procedures. Failure 1.0 maintain the proper records or to engage in proper sampling techniques is. itself. a violation subject to fines-in some cases. significant fines. Third, evaluate the facility and permit requirements in light of the need for operational flexibility. This requires business decisions to be made concerning anticipated modifications to the facility as well as expected changes in the manufacturing process or other activity of the facility. By anticipating these changes in the process of submitting the initial pennit application. a business can save costly steps and avoid the need of seeking a modification to the operating permit later. and also preserve a greater degree of operational flexibility under which the permit is issued. INFORM. Vol. 6. no. 2 (February 1995)

4 190 SAFETY Be ENVIRONMENT The fourth and final step is to implement a compliance strategy. This requires both a thorough understanding of specific employees' responsibilities for actions required by the operating permit, including sampling and inventorying emissions on an ongoing basis, as well as reporting and record-keeping requirements imposed by the operating permit. In facilities that desire to retain the greatest degree of Flexibility under their operating permit, it is also important to have the individuals responsible for compliance available for input into decisions concerning plant expansion. modification or other changes in the activities and operation of the facility. The time and expense invested in compliance with the CAA requirements can benefit a facility by preserving greater flexibility and also reducing the cost of compliance. To properly respond 10 the Title V Operating Permit requirements. a facility must not only understand the specific obligations contained in the CAA as implemented by the state but also must anticipate the future use and activity of that facility. When this is done, the Title V Operating Permit. though still a very costly regulatory measure. will be less costly than if the proper planning and implementation steps had not been taken. References I. Pub. L. No , 84 Stat ( 1970). 2. Ambient air quality standards were adopted pursuant 10 Section 109 of the Act (42 U.S.C. Section 7409 (1992)]. 3.4OCFR Part 50 (1993) USC USC USC USC 7413 and USC USC USC USC Iq USC P66! CFR 70.3(b)(4)(O (1993) and 40 CFR 70.3(b)(4XiO (1993). APPENDIX A CAS No. Chemical name CAS No. Chemical name () Acetaldehyde Acetamide Acetonitrile Acetophenone z-acetylamtnofluorene Acrolein Acrylamide Acrylic acid Acrylonitrile Allyl chloride 4-Aminobiphenyl Aniline o-anisidine Asbestos Benzene (including benzene from gasoline) Benzidine Benzotrichloride Benzyl chloride Biphenyl Bis(2-ethylhexy)phthalate (DEHP) Bis(chloromethyl)ether Bromoform 1.3-Butadiene Calcium cyanamide Caprolactam Captan Carbaryl Carbon disulfide Carbon tetrachloride Carbonyl sulfide Catechol Chlornmben Chlordane Chlorine Chloroacetic acid 2-Chloroacetophenone Chlorobenzene Chlorobenzilate Chloroform Chloromelhyl methyl ether Chloroprene Cresols/Cresylic acid (isomers and mixture) o-cresct m-cresot p-cresol Cumene salts and esters DOE Diazomethane Dibenzofurnns 1.2-Dibromo-3-chloropropane Diburylphthalate 1.4-Dichlorobenzene(p) 3.3-Dichlorobenzidene Dichloroethyl ether (8i.s(2- chloroelhyl)ether) 1.3-Dichloropropene Dichlorvos Diethanolamine N,N-Diethyl aniline (N,N-Dimethylaniline) Diethyl sulfate 3.3-Dimethoxybenzidine Dimethyl aminoazobenzene 3,3'-Dimethyt benzidine Dimethyl carbamoyl chloride Dimethyl fonnamide INFORM, Vol. 6, no. 2 (February 1995)

5 191 CAS No. Chemical name CAS No. Chemical name ()()()() I, l-dimethyl hydrazine Dimethyl phthalate Dimethyl sulfate 4,6-0inilro-o-cresol. and salts z.a-dtnhrophenot z.a-dtnluorcluere I,4-Dioxane (1,4-Diethyleneoxide) I,2-Diphenylhydrazine Epichlorohydrin (l-cbloro-z.s. epoxypropane) t.z-epoxybutene Ethyl acrylate Ethyl benzene Ethyl cnrbanuue (Urethane) Ethyl chloride (Chlorcethane) Ethylene dibromide (Dcbrornoethane) Ethylene dichloride (1.2-Dichloroernane) Ethylene glycol Ethylene imine (Aziridine) Ethylene oxide Ethylene thiourea Elhylidenc dichloride (I.I-Dichloroethane) Formaldehyde Heptachlor Hexachlorobenzene Hexachlorobutadiene Hexachlorocyclopentadiene Hexachloroethane Hexamethylene-I,6-diisocyanate Hexamethylphosphoramide Hexane Hydrazine Hydrochloric acid Hydrogen fluoride (Hydrofluoric acid) Hydroquinone Isophorone Lindane (all isomers) Maleic anhydride Methanol Methoxychlor Methyl bromide (Bromomethane) Methyl chloride (Chloromethane) Methyl chloroform (1,1. I-Trichloroethane) Methyl ethyl ketone (2-Butanone) Methyl hydrazine Methyl iodide (lcdomerhane) Methyl isobutyl ketone (Hexone) Methyl isocyanate SUNYI HIGH OIIIC VIGlrA811 OILS: rhi HIGH PIRFORMANCI AlriIlNAflVI. Now there is a high-performance, high-oleic alternative to traditional oils that is also environmentally sound and cost-effective. SUNYl~ vegetable oils and their derivatives are designed for specialty end uses and for serving as feed stocks. SUNYl vegetable oils are: Readily biodegradable Vegetable oil-based, to minimize eco-toxicity concerns Oxidatively and thermally stable Produced worldwide to meet your volume and timing requirements Call today at 1-' '6 to learn more about SUNYl oils and materials. INFORM. Vol. 6. no, 2 (February 1995)

6 192 SAFETY Be ENVIRONMENT CAS No. Chemical name CAS No, Chemical name iol Methyl methacrylate Methyl tert butyl ether 4,4-Melhylene bis (2.chloroaniline) Methylene chloride (Dichloromethane) Methylene diphenyl dii5ocya~ate (MDI) 4,4'-Melhylenedianiline Naphthalene Nitrobenzene 4-Nitrobiphenyl 4-Nitrophenol 2-Nitmpropane N-Nitroso-N-methylurea N-Nitrosodimethylamine N-Nitrosomorpholine Parathion Pentachloronitrobenzene (Quintobenzene) Pentachlorophenol Phenol p-phenylenediamine Phosgene Phosphine Phosphorus Phthalic anhydride Polychlorinated biphenyls (Aroclors) 1.3-Propane suhone beta-propiolactone Propionaldehyde Propoxur (Baygon) Propylene dichloride (1.2-Dichloropropane) Propylene oxide t.z-propylenlmlne (2-Methyl aziridine) Quinoline Quinone Styrene Styrene oxide 2,3,7,8- Teuachlorodibenzo-p-dioxin 1,1,2,2-Tetrachloroethane Tetrachloroethylene (Perchloroethylene) TItanium tetrachloride o o Toluene 2,4- Toluene diamine 2,4- Toluene diisocyanare 0-Toluidine Toxaphene (chlorinated camphene) 1,2,4-Trichlorobenzene 1,1.2-Trichloroethane Trichloroethylene Trichlorophenol 2,4,6- Trichlorophenol Triethylamine Trifluralin Trimelhylpentane Vinyl acetate Vinyl bromide Vinyl chloride Vinylidene chloride (I, l-dichloroethylene) Xylenes (isomers and mixture) o-xylenes m-xylenes p-xylenes Antimony compounds Arsenic compounds (inorganic including arsine) Beryllium compounds Cadmium compounds compounds Cobalt compounds Coke oven emissions Cyanide compounds= Glycol etherse Lead compounds Manganese compounds Mercury compounds Fine mineral fibersc Nickel compounds Polycyclic organic mauerd Radionuclides (including redon)e Selenium compounds NOTE: For all listings above which contain the word "compounds" and for glycol ethers, the following applies: Unless otherwise specified, these listings are defined as including any unique chemical substance that contains the named chemical (i.e., antimony. arsenic, etc.) as pan of that chemical's infrastructure. e X'eN where X = H' or any other group where a formal dissociation may occur. For example KCN or Ca(CN)z b Includes mono- and diethers of ethylene glycol, diethylene glycol, and triethylene glycol R-(OCH2CH2)n-OR' where n=i,2,or3 R = alkyl or aryl groups R' = R. H, or groups which, when removed, yield glycol ethers with the structure: R-(OCH2CH)n-OH. Polymers are excluded from the glycol category, c Includes mineral fiber emissions from facilities manufacturing or processing glass, rock. or slag fibers (or other mineral derived fibers) of average diameter I micrometer or less. d Includes organic compounds with more than one benzene ring, and which have a boiling point greater than or equal to 1()()Oc. "A type of atom which spontaneously undergoes radioactive decay. INFORM. Vol. 6, no. 2 (February 1995)