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MACT SSM - The New Approach “Affirmative Defense”

MACT SSM - The New Approach “Affirmative Defense”






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    MACT SSM - The New Approach “Affirmative Defense” MACT SSM - The New Approach “Affirmative Defense” Presentation Transcript

    • MACT SSM - The New Approach “Affirmative Defense” John P. Egan All4 Inc. All4 Inc. Air Quality Training Seminar Montgomery, AL December 7, 2010 Your environmental compliance is clearly our business.
    • MACT SSM – Agenda  Where it started  How did it change  The repercussions  The new approach  What do we do now2
    • 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 A3
    • 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).4
    • 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 conducted5
    • 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 requirements6
    • 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 request7
    • 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.8
    • 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.9
    • 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 event10
    • 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 request11
    • 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.12
    • 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 events13
    • 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/S14
    • 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 definition15
    • 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…16
    • 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…17
    • 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…18
    • 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 emissions19
    • 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 exceedances20