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EPA Issues Final Rule for NESHAP for the Nine Chemical Manufacturing Area Source Categories in Response to Petition for Reconsideration


By Kate E. Beatty, Attorney, Bingham Greenebaum Doll LLP

On October 29, 2009, EPA issued a final rule (2009 Final Rule) regarding the NESHAP levels for the nine chemical manufacturing area source (CMAS) categories. After promulgation of the rule, industry leaders including the American Chemistry Council (ACC) and the Society of Chemical Manufacturers & Affiliates (SOCMA) petitioned the EPA for reconsideration. The ACC and SOCMA specifically referenced six provisions which they wanted the EPA to reconsider. The ACC and SOCMA argued the new provisions in the 2009 Final Rule were burdensome and the environmental benefits did not outweigh the costs associated with complying with the new rule, especially the Title V permit requirement. Specifically, the ACC explained that each time a different chemical product was created the manufacturer would have to amend their Title V permit which prevents flexibility in their manufacturing processes.

The six provisions the ACC and SOCMA requested EPA to reconsider included: (1) the requirement that all post-1990 synthetic area sources obtain Title V permits; (2) the requirement to comply with the overlapping rules independently; (3) leak inspections which require direct and proximal inspection of all areas of potential leaks within the chemical manufacturing process unit (CMPU); (4) the requirement that cover lids be utilized on process vessels in HAP service at all times, except during times of material addition and sampling; (5) the requirement to conduct leak inspections while the equipment is in HAP service; and (6) the requirement that CMPUs include the processes and equipment used to produce a “family of materials.”

EPA agreed to reconsider the six provisions and published its proposed rule provision on January 30, 2012. As the compliance date for the previous 2009 Final Rule was scheduled for October 29, 2012 and because the EPA was still finalizing the reconsideration action, a brief stay was published on October 25, 2012.

EPA published the revised final rule in the December 21, 2012 Federal Register (2012 Final Rule). The revised 2012 Final Rule did not change the environmental emissions requirements but rather focused on the issues of flexibility and clarity. The final rule includes the following revisions in response to the Petition for Reconsideration: (1) area sources required to obtain a Title V permit are limited to those synthetic area sources which installed a federally-enforceable air pollution control device on an affected CMPU (Title V applications must be submitted by December 21, 2013); (2) sources are still required to comply with the most stringent rule if there are overlapping provisions in the CMAS rule and other NESHAPs; (3) direct and proximal leak inspection requirements were removed, instead quarterly sensory inspections of all equipment and process vessels are acceptable as long as the sensory inspection can detect leaks within the CMPU; (4) the cover lid must be in place and closed at all times when a process vessels is in organic HAP service or metal HAP service except during manual operations, such as material addition, removal, sampling, inspection or cleaning; (5) leak inspections of a CMPU that contains metal HAP as a particulate must still be conducted while in metal HAP service but if the CMPU does not contain metal, the inspection may occur during VOC service; and (6) the definition of “family of materials” was altered to coincide with the CMAS rule and it was revised to only apply to products whose production involves emission of the same Table 1 HAP.

Although EPA did not eliminate the Title V permit requirement for all area sources it explained that the Title V Permit Program already allows for flexibility in production.  The EPA referenced the “Alternative Operating Scenarios” and “Approved Replicable Methodologies” as two programs available to chemical manufacturers to avoid permit revisions and stressed the importance of implementing these programs in conjunction with obtaining their Title V permits.

The new compliance date for existing sources is March 21, 2013. The compliance date for new sources was not extended and remains October 29, 2012.

To view a complete PDF of the Fourth Quarter 2012 issue of the Air Quality Letter, click HERE.


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