New EPA Rule Allows Extensions of Stack Testing Deadlines
By Andy Bowman, Attorney, Bingham Greenebaum Doll LLP
On May 10, 2007, the U.S. Environmental Protection Agency (EPA) issued a final rule which allows source owners and operators to request an extension of the time period required to conduct performance tests (a/k/a stack tests) in response to major events beyond the control of the owner or operator that cause a performance test to be delayed. The amendments apply to any source whose owner or operator is required to conduct stack testing to demonstrate compliance with federal Standards of Performance for New Stationary Sources or National Emission Standards for Hazardous Air Pollutants. The amendments became effective on May 16, 2007. Notice of the final rule was published in 72 Fed. Reg. 27437 (May 16, 2007). Before the amendments, the federal rules did not allow for extensions of deadlines for conducting stack tests.
The amendment defines “force majeure” as an event caused by circumstances beyond the control of the affected facility, its contractor or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct stack testing within a specified time. Examples of a force majeure event include acts of nature, acts of war, terrorism, equipment failure or a safety hazard beyond the control of the affected facility. See 40 CFR §§ 60.2, 61.02 and 63.2. Other events may also qualify as a force majeure event.
The rule amendments require the source owner or operator to notify the EPA in writing of a force majeure event as soon as practicable after the date the owner or operator first knew or, through due diligence, should have known that an event may cause a delay in testing. A notification must occur before the performance test deadline unless aforce majeure event delays the notification. The notification must include a description of the force majeure event, a rationale for attributing the delay in testing to the force majeure, a description of measures taken or to be taken to minimize the delay and a date by which the stack test will be conducted. The stack test must be conducted as soon as practicable after the force majeure event occurs.
The EPA has sole discretion whether to grant an extension of the performance test deadline. The EPA is required to notify the owner or operator in writing of the approval or denial of the request as soon as practicable. The preamble to the amendment indicates that there may be circumstances where an initial verbal notification followed by written notification may be appropriate such as a widespread power outage and no postal service. EPA has indicated that written notification may be made by fax, e-mail, or letter. The amendments require the notification to be made to the Administrator of the EPA rather than a state agency. However, EPA indicated in the preamble that it may subsequently delegate responsibility for evaluating extension requests to a state agency.
According to the EPA, if the owner or operator misses a performance test deadline due to a force majeure event and an extension request is approved, the owner or operator will not be held in violation for failure to conduct a performance test within the required timeframe. EPA also advised that an extension granted under the amendments is not considered a Title V operating permit deviation because the test deadline will no longer be applicable once an extension request has been approved. However, the EPA noted that where the EPA has not yet issued a decision on a request for an extension, the failure to conduct the stack test within the original timeframe is a deviation and must be reported as such.