Navigating the Changing Regulatory Landscape
Laws governing clean air changed drastically with the Clean Air Act Amendments of 1990. The complicated truth is revealed when one looks at how the rules were changed and, more specifically, how complicated it is to comply with the new and pending changes.
The realities of these Clean Air Act changes are now starting to show their teeth in the form of new performance requirements and record keeping. It will be common, even for the well-informed, to slip up and slide into noncompliance with the new requirements. The discussion below is intended to provide some insight into staying in front of the changes and staying out of prison-at least for air violations.
New source review-changes to production lines or site activitiesChange is often a good thing for a business, but operations need to be mindful of the rules. Any change to equipment, processes or materials may trigger a review of an air-quality permit.
The vast majority of problems encountered include changes that someone made without considering the permitting requirements associated with "new," "reconstructed," or "modified" operations. These terms are defined in the Clean Air Act and accompany phrases such as "changes in the method of operation" and "significant net emissions increases." The phrases sound fairly straightforward, but they produce fear in the hearts of many, and dollar signs before the eyes of environmental consultants and attorneys.
To avoid these pitfalls, consider these pre-emptive steps:
Step one: Plan well in advance of making proposed changes. Make the project team aware of the goals as soon as possible. Include the environmental folks, and ask about the delays associated with the elements of the project. Some elements can be postponed while others have long regulatory review times. Do your critical-path planning with all concerned.
Step two: Consider the alternatives. Include in the scenario the possibility of eliminating nonessential steps and chemicals. Find alternatives for critical steps that will lower the overall regulatory burden. I wish I had a dime for every time I asked; "Now, why do you do that step?" And I wish I had a dollar for every time the answer was, "Because that's the way we've always done it." Shake the tree, look for low-hanging fruit and go for it!
Step three: Engage the permitting agency early in the process. As soon as you decide to go forward with a project, let the agency that will receive and review your air permit application know what you are doing and why. If there is a history of compliance issues with your operation, engage legal assistance to guide you through the process.
MACT-requirements on existing and new operationsThe good, old Clean Air Act has a way of creeping into a shop, even if nothing has changed. If you are an affected source and have one of the targeted operations that emit HAPs (a list of 188 materials), then you may have emission-reduction requirements that can add overhead without contributing to sales.
These HAP-related standards are called "maximum achievable control technology" requirements, or MACT standards. They can be quite onerous in their impact on an operation and can carry hefty fines for violations. Most of the coating standards are new this year. This creates an information void that cannot be filled by applying historical knowledge.
The regulatory goal of a given MACT standard is to reduce the emission of HAPs. There is, and will continue to be, big business opportunities for companies that can supply "low HAP" and "no HAP" technologies.
For example, powder coating on metal has been a good coating option for some. Moving to powder may reduce the costs associated with conventional, high-HAP-containing liquid coatings. This speaks volumes to the potential economic impact of the MACT standards on high-HAP-emitting technologies.
The 18 coating MACT standards recognize the benefit of eliminating HAPs in the coating world, and provide relief in the ongoing demonstrations if HAP levels in coatings are minimized to a source-specific level. Translation: there is less to do if you select HAP-compliant methods, and avoid averaging and costly end-of-pipe treatment methods.
If treatment is chosen, companies need to be ready not only for the associated capital and operating costs, but also for costly and time-consuming tests to demonstrate the effectiveness of the controls. In addition to the tests and reports, companies will also be subjected to limits on production associated with the test. Conceivably, if a company tested at 50% production with an effectiveness of X, then it will not be allowed to exceed 50% production without first demonstrating the control effectiveness at the higher level of production.
So what's a coater to do with these MACT standards? Get involved! Learn the standards that apply to you, and develop a plan of attack. Some of the MACT standards have been published as final rules and are well underway to becoming a daily or monthly requirement for many operations. Move rapidly towards a compliance plan and get the alternatives identified and approved for use in your operation. If you need expensive hardware to comply, get a capital budget plan to the front office soon.
Read and understand the requirements of the standard. At a minimum, you should determine the time frame and the associated notices that are required by the standard. There are several reports due to the agency and one requires a notice to tell the U.S. EPA how you plan to comply with the requirements. Do your homework, and do it now.
Title V-the air permit to end all air permitsThe 1990 Clean Air Act Amendments' (CAAA) most comprehensive air-quality management program is Title V's operating permit program. Modeled after the federal Clean Water Act's National Pollutant Discharge Elimination System permit program, Title V's operating permit program is conducted on the state and national levels, with the states being authorized by EPA to administer the program themselves. Title V consolidates all of a facility's CAA requirements into one "enforcement" document. Almost anyone using organic coatings in a production environment could be classified as an "affected source" or "major source" depending on the overall volume of organic solvents used and the volumes of specific solvents.
EPA rules determine applicability to the permitting requirements. For example, an operation requires a Title V permit if one or more of the following situations are true:
- The operation has potential emissions above the criteria pollutant major source thresholds (e.g., VOCs greater than 100 tons per year).
- The operation has potential HAP emission of a single HAP compound above 10 tons per year (e.g., toluene greater than 10 tons per year).
- The operation has potential emissions of all combined HAPs of 25 tons per year.
- The operation is an area source identified by EPA to require a Title V permit, even though the potential emissions are below the major source criteria above (e.g., secondary aluminum processing). Assume for a moment that you have done your new source review air permitting correctly, and you fully comply with all your MACT-specific requirements. It must be OK to assume that you are all set, right? Wrong. There is that Title V air permit thing to do. The Title V permits are not new; in fact, many five-year permits are under review and being renewed now. At face value, the concept of a Title V permit makes perfect sense: place all the site air rules into one set of air regulatory requirements. In reality, they can be quite challenging. Folks get into trouble very quickly with Title V permits. Five areas to be cautious with are:
- Applicable requirements
- Monitoring and record keeping
- Certification of compliance
Applicable requirementsThe permit system tends to be inflexible with respect to changes, and, if not careful, one can easily back into a very restrictive set of requirements that will choke the life out of an operation. For example, making changes at the site can involve difficult and costly permitting exercises followed up by public-notice requirements.
Some companies can go years without a significant change that would otherwise require the permit to be opened. Other industries cannot go more than a few days without the requirement to incorporate a change. Much depends on the nature of the industry and the company that calls a site home.
Prudent advice calls (again) for a well-thought-out and executed plan of attack. Everything conceivable should be included in the permit. However, good strategy here includes only those things that truly apply to the operation. Advocate hard for realistic and reasonable permit conditions.
The agency may take a few liberties if your operation has not been in good standing. If your track record is reasonably clean, ask the permit agent for some latitude, where appropriate and reasonable. Also be ready to give on a few items. The give and take of negotiating the permit can make all the difference in the world.
Research questionable topics so that you are prepared to have unnecessary requirements removed. Include those items that are appropriate to be included in the permit, and list those items you determine not to be applicable. Sounds silly, but it may be hard to remember what folks were thinking about three and a half years ago when the application was prepared and submitted.
Document your thinking and the assumptions made. It is quite acceptable to ask the agency representative to give you a letter of interpretation on difficult or complex issues. Limit these requests to the really necessary things. These interpretations can be priceless at a later date.
MonitoringIn many instances, neither the agency nor sources have historically been required to "monitor" emissions. Title V requires a method for determining compliance with all applicable requirements. Almost immediately folks jump to a "stack test" as the means for monitoring the activity. Although sometimes necessary, a stack test may be the least-appropriate method based upon accuracy, practicality and cost.
Stack testing is extremely source- and pollutant-specific, and does not always give the most accurate picture of emissions. Often, specific stack-testing methods have not been developed for the situation or the pollutant. In some cases, emission factors or calculations using material formulations may be preferable.
Coaters often put additives into paints and coatings. These can include simple solvents for adjusting viscosity, hardeners, gloss enhancers, catalysts (for two-component paints), and any number of special ingredients to make the coating or application method "better."
Any time you do anything to the paint, you take on a tracking and reporting task that may require it to be accounted for and reported under the Title V permit. Think before you add, and record what and when you do it.
Reporting/compliance certificationBe timely with all monitoring and status/compliance certification reports. Do not report late and always report accurately!
RenewalsKnow your renewal dates, and make necessary changes during the renewal period, if possible. Most commonly, permits are issued for a five-year period, and the renewal period typically occurs within the last six to 18 months of the permit term.
Be sure to get a determination of completeness on the application for renewal before the cut-off date, which is typically six months prior to the permit's expiration. This means your application must be in the hands of the state at least 30 to 60 days prior to the cut-off date. You can avoid a lot of heartburn if you are timely with the permit renewal.
Most importantly, do not ever let your permit expire! Failure to follow the simple deadlines can be very costly to the operation and place the site at huge risk of serious and costly enforcement actions.