MACT SSM - The New Approach “Affirmative Defense”
Transcript of MACT SSM - The New Approach “Affirmative Defense”
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Your environmental compliance is clearly our business.
MACT SSM - The New Approach “Affirmative Defense”
All4 Inc. Air Quality Training Seminar
Montgomery, AL
December 7, 2010
John P. EganAll4 Inc.
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MACT SSM – Agenda Where it started How did it change The repercussions The new approach What do we do now
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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 A
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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).
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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 conducted
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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 requirements
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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
request
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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.
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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.
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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 event
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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 request
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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.
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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 events
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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/S
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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 definition
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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…
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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…
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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…
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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 emissions
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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 exceedances