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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