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Potentially reducing regulatory burdens and encouraging pollution prevention: U.S. EPA withdraws “once in always in” policy for major sources under Clean Air Act

On Thursday, January 25, 2018, the U.S. Environmental Protection Agency (U.S. EPA) issued a guidance memorandum [PDF] withdrawing the “once in always in” policy for the classification of major sources of hazardous air pollutants (HAPs) under section 112 of the Clean Air Act. With the new guidance, sources of hazardous air pollutants previously classified as “major sources” may be reclassified as “area” sources when the facility limits its potential to emit below major source thresholds.

The Clean Air Act defines a “major source” as a one that emits, or has the potential to emit, 10 tons per year of any hazardous air pollutant, or 25 tons per year or more of any combination of hazardous air pollutants. Sources with emissions below this threshold are classified as “area sources.” Different control standards apply to the source depending on whether or not it is classified as a “major source” or an “area source.”

In a 1995 memo, the U.S. EPA established a “once in always in” policy that determined that any facility subject to major source standards would always remain subject to those standards, even if production processes changed or controls were implemented that eliminated or permanently reduced that facility’s potential to emit hazardous air pollutants.

With this step, the U.S. EPA is reducing unnecessary regulatory burdens that deterred innovative efforts to improve the environment. The “once in always in” policy has been a longstanding disincentive for sources to implement voluntary pollution abatement and prevention efforts, or to pursue technological innovations that would reduce hazardous air pollution emissions.

“This guidance is based on a plain language reading of the statute that is in line with U.S. EPA’s guidance for other provisions of the Clean Air Act,” said Bill Wehrum, assistant administrator of U.S. EPA’s Office of Air and Radiation in the press release [PDF]. “It will reduce regulatory burden for industries and the states, while continuing to ensure stringent and effective controls on hazardous air pollutants.”

The guidance memo also finds that U.S. EPA had no statutory authority under the Clean Air Act to place a time limit on when a facility may be determined to be an area source, and that a plain language reading of the Act must allow facilities to be reclassified as area sources once their potential to emit hazardous air pollutants falls below the levels that define major sources.

U.S. EPA anticipates that it will soon publish a Federal Register notice to take comment on adding regulatory text that will reflect U.S. EPA’s plain language reading of the statute as discussed in this memorandum.

In response to the new U.S. EPA guidance, the Indiana Department of Environmental Management (IDEM), Compliance and Technical Assistance Program (CTAP), which provides free and confidential compliance and technical assistance to businesses in Indiana, is offering to work with Indiana companies who would like assistance related to this new guidance. CTAP staff can help by assisting in permit application preparation, potential to emit calculations, reviewing modifications, or by helping businesses identify pollution prevention opportunities to reduce the amount of HAPs a business is using or emitting. By implementing pollution prevention efforts and reducing potential to emit of HAPs, businesses can potentially reclassify their source status from a “major source” to “area source” of HAPs.

Important things to consider when seeking permit changes related to this policy change:

  • When a source applies for a renewal, the Office of Air Quality (OAQ), Permits Branch will evaluate if the updated policy affects the source’s NESHAP applicability even if not specifically requested in the application;
  • If a source submits a permit modification /revision application, OAQ will make an effort to identify opportunities for changes in NESHAP applicability at that time, but sources should request such changes in the application when submitted.
  • A source’s HAP emissions may still be regulated after the removal of Major Source NESHAP requirements. After becoming a minor source for HAPs, the source may be subject to Area Source NESHAPs, and/or state rules under 326 IAC 8 for VOCs (which often are also HAPs);
  • 326 IAC 8-1-6 exempts sources subject to the NESHAP requirements identified in 326 IAC 20-48 (Subpart VVVV) and 326 IAC 20-56 (Subpart WWWW), so if these requirements are removed from the permit, applicability of 326 IAC 8-1-6 would need to be evaluated;
  • A source must still comply with the NESHAP requirements included in their permit even if the source has actual HAP emissions below the 10 and 25 TPY thresholds until they have applied for and obtained a permit modification/revision or new operating permit that imposes federally enforceable limits restricting the potential to emit of HAPS to less than these thresholds; and
  • A source’s permit level will not necessarily change after taking limits to be minor for HAPs unless HAP emissions were the determining factor for the source’s permitting level.

Note: This guidance memorandum is being challenged by some environmental groups, and has been petitioned for review in the U.S. Court of Appeals. The IDEM Office of Air Quality (OAQ) is continuing to process applications according to the U.S. EPA guidance memorandum. If a source wishes to remove a major source NESHAP from their permit, the source can do so by completing the application process, followed by the issuance of a federally enforceable permit. If the guidance memorandum is over-turned in the future, the source will need to change their permit to reflect the approved guidance at that time.

Five Most Common Underground Storage Tank (UST) Compliance Violations

In 2017, inspectors from the Indiana Department of Environmental Management’s Underground Storage Tank (UST) Branch found five common violations at petroleum UST facilities. UST owners and operators can avoid these violations and achieve compliance with environmental regulations by following the tips provided.

Top Five Violations
  1. Failure to submit notification to register the tank or UST system.
    • Tip: Submit notice to IDEM to register the tank or UST system within 30 days of owning or bringing the system or tank into use, per 329 IAC 9-2-2(b) [PDF]. “Into use” means the tank or UST system contains or has contained a regulated substance and has not been closed under 329 IAC 9-6.
  2. Failure to provide monthly release detection for USTs.
    • Tip: Monitor all USTs at least every 30 days using one of the methods listed in 329 IAC 9-7-4(4) through 329 IAC 9-7-4(8), per 329 IAC 9-7-2 [PDF]. Learn the exceptions and acceptable methods for tank leak detection in 329 IAC 9-7-4.
  3. Failure to provide proof of financial responsibility.
    • Tip: Maintain evidence of all financial assurance mechanisms used to demonstrate financial responsibility for a UST, per 329 IAC 9-8-21(a) [PDF], until released from the requirements under 329 IAC 9-8-23. Always maintain the evidence at the UST site or the owner or operator's place of work. Records maintained off site must be made available upon request.
  4. Failure to have financial responsibility.
    • Tip: Demonstrate financial responsibility for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of a petroleum UST in a per occurrence amount of at least one million dollars ($1,000,000), per 329 IAC 9-8-4(a) [PDF].
  5. Failure to maintain proper release detection methods for piping.
    • Tip: Conduct each method of release detection for piping used to meet 329 IAC 9-7-2 in accordance with automatic line leak detectors, line tightness testing, and applicable tank methods, per 329 IAC 9-7-5 [PDF].

In addition, UST owners or operators also must maintain accurate and current records and be able to produce these records upon request.

Hazardous Waste Generator Improvements Rule

U.S. EPA’s final Hazardous Waste Generator Improvements Rule (HWGI) was published in the Federal Register (FR) on November 28, 2016. This final rule became effective at the federal level on May 30, 2017. However, the HWGI rule will not be effective until it is adopted as a state rule in Indiana, which will not happen for many months. The IDEM Featured Topics page provides more information. Direct any questions to the IDEM Office of Land Quality Regulatory Reporting staff or the IDEM Compliance and Technical Assistance (CTAP) staff.

New Definition of Solid Waste (DSW):

The U.S. EPA published a final rule that went into effect July 13, 2015, which revises several recycling-related provisions associated with the definition of solid waste (DSW), which is used to determine hazardous waste regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA).

Note: IDEM adopted this new DSW rule language by reference in its entirety. A pending DC Court of Appeals ruling regarding portions of the EPA’s 2015 Definition of Solid Waste may affect the new requirements for Indiana’s regulated community differently than outlined below.

IDEM Trainings and Certifications:

Solvents in the Workplace

The U.S. EPA has released a new guidance document, entitled, Solvents in the Workplace – How to Determine If They Are Hazardous Waste [PDF].

Solvents are used in the workplace for many different purposes and once they are spent or left unused and destined to be disposed, making hazardous waste determinations can sometimes be a challenging task. This e-enterprise user-friendly guidance walks through a series of questions and answers that will help a facility determine if it may have generated a hazardous waste solvent. The guidance provides information to assist a facility in recycling or reusing its solvents which could reduce its waste management costs and the nation’s need for virgin materials. Also, at the end of the document, there are a number of questions the U.S. EPA has answered through the years involving hazardous waste solvents.