Environmental
JULY 2003
MACT Hammer to Strike — Again
Many industrial entities are now required to furnish Part 2
of the applications seeking “case-by-case” establishment
and implementation of maximum achievable control
technology (“MACT”) to curtail air emissions. The socalled “MACT hammer” which went into effect on May
15, 2002, but for which the EPA delayed certain filing
requirements for two years, is now the subject of a
settlement between the EPA and the Sierra Club, by which
the time schedule for the delayed filing requirements will
be accelerated. Accordingly, it is critical that those who
have been affected by the MACT hammer take appropriate
action in preparation to meet the Part 2 filing deadlines.
This Alert is intended to provide a general understanding
of the MACT requirements as effected by the settlement
agreement, to publicize the approaching deadlines, and to
assist in providing an outline for an appropriate course of
action. The Alert updates the previous Alert of April 2002,
“MACT Hammer Poised to Strike.”
MACT BACKGROUND
MACT is the technology standard by which the Clean Air
Act regulates sources of Hazardous Air Pollutants. Under
the Clean Air Act Amendments of 1990, Pub. L. 101-549
(Nov. 15, 1990) (“the Act”), EPA is required to publish
and regularly amend a list of source categories and
subcategories of all major and area sources of HAPs. 42
U.S.C. § 7412(c)(1). For each category and subcategory,
EPA is to establish NESHAPs (National Emission
Standards for Hazardous Air Pollutants), to be achieved
through implementation of MACT at all major HAP
sources. 42 U.S.C. § 7412(d).
MACT applies to both new sources and existing sources of
HAPs. For new sources, MACT requires the achievement
of the maximum degree of emissions reductions that has
been achieved in practice by the best-controlled similar
source. 42 U.S.C. § 7412(d)(3). For identified existing
sources, the emissions standards may be slightly less
stringent, but in any event not less stringent than the
average achieved by the best performing twelve percent of
existing sources within each source category. 42 U.S.C.
§ 7412(3)(A). MACT standards may require reductions in
a variety of ways, including the use of material
substitutions or enclosed systems, the capture and removal
of hazardous air pollutants, or specific equipment design
or operator training requirements. 42 U.S.C. § 7412(d)(2).
THE SETTLEMENT
To ensure EPA’s swift and diligent compliance with the
requirements to establish NESHAPs and MACT, the
Clean Air Act Amendments imposed the so-called “MACT
hammer.” 42 U.S.C. § 7412(j). The MACT hammer
provided that if, by November 15, 2001, a MACT standard
for a particular category or subcategory was not
established, each owner or operator of a major source
within that category or subcategory would need to submit
a Title V permit application to the proper Clean Air Act
authority (in most cases, the State) by May 15, 2002. As
of April 2002, EPA recognized that approximately 60
source categories and subcategories would be affected by
the MACT hammer.
Responding to industry concern, the EPA published a final
rule in April 2002 that eased the permit application burden
to some extent. 67 Fed. Reg. 16582 (April 5, 2002). The
final rule provided that facilities subject to the MACT
hammer would be required to submit a Title V permit
application in two parts – Part 1 by May 15, 2002, and Part
2 by no later than 2 years after submission of Part 1. Part
1 required limited, identifying information regarding the
source. Part 2 requires more detailed information
regarding the identity and emission rate of HAPs emitted
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by the source, control technology in place at each emission
point, relevant information to establishing the MACT
floor, and any existing limitations (Federal, State or local)
applicable to the source.
Alleging that EPA’s decision to grant a two-year extension
to sources subject to the MACT hammer was
impermissible, the Sierra Club filed suit in the District of
Columbia Circuit. Sierra Club v. U.S. EPA, No. 02-1135
(D.C. Cir. 2002). After successful negotiations, the parties
proposed a settlement agreement to the Court of Appeals
by which the Part 2 application deadline would be
accelerated, to as soon as May 15, 2003. See http://
www.epa.gov/airlinks/112j.html (text of proposed
settlement agreement).
The settlement agreement was published as a proposed
rule on December 9, 2002, 67 Fed. Reg. 72875, for which
a public comment period was open until January 20, 2003.
As part of the settlement agreement, however, EPA agreed
to publish a final rule by April 27, 2003. EPA reviewed
the numerous comments received on the proposed rule and
published the final rule on May 30, 2003. 68 Fed. Reg.
32586 – 32603 (May 30, 2003).
The final rule provides that facilities subject to the Part 2
permitting requirement (i.e., subject to MACT and
required to submit Part 1 in 2002) will be responsible for
submitting Part 2 of the application by a set of rolling
dates dependent upon the source category into which the
facility falls. Under the rule, 12 source categories face an
October 30, 2003 deadline; four categories face an April
28, 2004 deadline; and two categories face an August 13,
2005 deadline. Those source categories are listed in the
table below. It is important to note that the applicability to
certain source categories and the deadlines have
significantly changed from the proposed rule, in large part
because many MACTs were established for source
categories between the proposed and final rule, making a
Part 2 application for these sources unnecessary.
2
In a previous suit brought by the Sierra Club challenging the
failure of EPA to promulgate MACT standards by the May
15, 2002 deadline, EPA and the Sierra Club reached an
agreement by which a schedule for promulgating the MACT
standards still lacking was established. Sierra Club v.
Whitman, 01-1337 (D.D.C.). The proposed dates for the
Part 2 applications were established to parallel these dates,
such that a facility would not be required to submit an
expensive and time-consuming Part 2 application that would
subsequently be defunct because a final, applicable MACT
rule was promulgated during the review period of the Part 2
application. The final rule specifically provides that once a
final MACT standard has been promulgated, a facility is no
longer required to submit the Part 2 application. 68 Fed.
Reg. 32586, 32593. Indeed, several of the source categories
listed in the settlement agreement have already been the
subject of a final MACT rule, and thus it is unnecessary for
these sources to submit Part 2 applications.1 In addition, all
of the categories and subcategories that lacked a NESHAP
as of May 15, 2002 (and thus became the subject of the
settlement) now have a proposed NESHAP.2 It is crucial to
note that source categories, while currently the subject of
proposed rules establishing NESHAPs, remain subject to
the MACT hammer unless and until a final rule is
promulgated.
SOURCE CATEGORIES AND SUBCATEGORIES
SUBJECT TO PART II ACCELERATION (AS LISTED
IN 40 C.F.R. PART 63, SUBPART B)
October 30, 2003
Combustion Turbines
Lime Manufacturing
Site Remediation
Iron and Steel Foundries
Taconite Iron Ore Processing
Miscellaneous Organic Chemical Manufacturing
Manufacture of Paints, Coatings, and Adhesives
Alkyd Resins Production
Maleic Anhydride Copolymers Production
Polyester Resins Production
1
These sources include Municipal Solid Waste Landfills, Paper & Other Webs (Surface Coating), Flexible Polyurethane Foam
Fabrication Operations, Coke Ovens: Pushing, Quenching and Battery Stacks, Reinforced Plastic Composite Production,
Semiconductor Manufacturing, Refractories Manufacturing, Clay Products Manufacturing, Brick and Structural Clay Products
Manufacturing, Clay Ceramics Manufacturing, Asphalt Roofing Manufacturing, Asphalt Processing, Integrated Iron and Steel
Manufacturing, Hydrochloric Acid Production and Fumed Silica, Engine Test Facilities and Rocket Testing Facilities, Metal Furniture
(Surface Coating), Printing, Coating and Dyeing of Fabrics, and Wood Building Products (Surface Coating).
2
For Federal Register citations and other information pertaining to the proposed rule for each source category,
see EPA’s air toxics website at http://www.epa.gov/ttn/atw/mactprop.html.
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Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polyvinyl Acetate Emulsions Production
Polyvinyl Alcohol Production
Polyvinyl Butyral Production
Ammonium Sulfate Production –
Caprolactam By-Product Plants
Quaternary Ammonium Compounds Production
Benzyltrimethylammonium Chloride Production
Carbonyl Sulfide Production
Chelating Agents Production
Chlorinated Paraffins Production
Photographic Chemicals Production
Phthalate Plasticizers Production
Rubber Chemicals Manufacturing
Symmetrical Tetrachloropyridine Production
Ethylidene Norbornene Production
Explosives Production
Hydrazine Production
OBPA/1,3 – Diisocyanate Production
Organic Liquids Distribution
Primary Magnesium Refining
Metal Can (Surface Coating)
Plastic Parts and Products (Surface Coating)
Chlorine Production
Miscellaneous Metal Parts and Products
Surface Coating
Asphalt / Coal Tar Application – Metal Pipes
April 28, 2004
Industrial Boilers, Institutional / Commerical Boilers and
Process Heaters (that burn no hazardous waste).
Plywood and Composite Wood Products
Reciprocating Internal Combustion Engines
Auto and Light-Duty Truck (Surface Coating)
August 13, 2005
Industrial Boilers, Institutional / Commerical Boilers and
Process Heaters (that burn hazardous waste).
Hydrochloric Acid Production
WHAT HAPPENS NEXT: AN APPROPRIATE
COURSE OF ACTION WHEN THE MACT
HAMMER IS APPLICABLE
1. Determine your facility’s source category and be
aware that a final MACT standard may be
promulgated before the Part 2 date applicable to
your facility.
As noted above, the Part 2 application due dates parallel
the MACT standards promulgation schedule agreed to by
JUNE 2002
the Sierra Club and EPA. As such, a final MACT standard
may be promulgated prior to the Part 2 due date, obviating
the time and expense involved in preparation of Part 2 of
the application. Frequent monitoring of the individual
MACT applicable is therefore recommended. The EPA
has recognized that the time between the deadline for the
promulgation of the MACT and the Part 2 due date is short
(60 days), and thus will try to provide “prompt advance
notice to affected sources and to permitting authorities” if
the deadline will be missed and Part 2 applications are
necessary.
2. Begin taking steps to collect the information
necessary to complete Part 2 of the Application.
Although EPA may promulgate a final MACT before the
deadline for the Part 2 application, such action is not
assured. In the final April 5, 2002 Rule, EPA noted that
“compiling a Part 2 application for simple sources
containing only a small number of emission points may
not be particularly onerous, but the burden on more
complex sources containing numerous sources and
emission points could be significant.” 67 Fed. Reg. 16589
- 90 (April 5, 2002). For this reason, as the deadline
approaches and if a MACT standard is not yet in place, it
is wise to begin to collect information in anticipation of
the necessity to complete Part 2. The Part 2 application
requires the following information:
■
For new sources, the anticipated day of startup;
■
Identification of the HAPs emitted by each affected
source in the relevant source category and an
estimated total controlled and uncontrolled emission
rate for each HAP;
■
Any existing Federal, State or local limitations or
requirements applicatble to the affected source;
■
Identification of control technology in place for each
affected emission point;
■
Any information relevant to establishing a MACT
floor, and at the option of the source owner or
operator, a recommended MACT floor; and
■
Any other information reasonably needed at the
discretion of the permitting authority.
Given the constant flux of the status of MACT rules,
however, a facility’s appropriate course of action is subject
to sudden changes.
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3. What if the facility has an Applicability
Determination pending before EPA?
Facilities that question whether a particular source
category subject to the MACT applies to them can submit
an “Applicability Determination” under 40 C.F.R.
§ 63.52(e)(2)(i) to EPA. That provision outlines a process
by which the applicability of the source category to the
facility will be made. For facilities potentially subject to
the MACT hammer, facilities were permitted to file
applicability determinations prior to the Part 1 deadline –
May 15, 2002. If a facility filed such a determination, the
Part II deadline was effectively deferred indefinetly. See
67 Fed. Reg. 72875, 72883 (Dec. 9, 2002). As a result,
EPA has hundreds of such requests pending – both which
“reflect a genuine uncertainty…[and those] which do not
present genuine applicability issues.”
days after EPA publishes a proposed MACT standard for
the applicable category, whichever is later. 68 Fed. Reg.
32586, 32595; 40 C.F.R. § 63.52(e)(2). The new request
must contain a discussion of the relation between the
source in question and the applicability provision in the
proposed MACT standard for the category or subcategory
and an explanation of why there may still be uncertainties
that require a determination of applicability.
As mentioned above, it is crucial to closely monitor
publication of the MACT standards as the Part 2 deadlines
approach. EPA maintains a regularly-updated table of
final and proposed rules on its Air Toxics Website,3 and
more timely information can be found in the daily
publication of the Federal Register.
R. TIMOTHY WESTON, ESQ.
tweston@kl.com
717.231.4504
For these reasons, EPA is requiring parties who previously
submitted an Applicability Determination before May 15,
2002, and who still wish to pursue a determination, to
resubmit and supplement the request by either July 29,
2003 (60 days after the date of the final rule) or within 60
3
TIFFANY M. CARTWRIGHT, ESQ.
tcartwright@kl.com
717.231.4514
http://www.epa.gov/ttn/atw/mactfnl.html (final rules) and http://www.epa.gov/ttn/atw/mactprop.html (proposed rules).
FOR MORE INFORMATION about this Alert or Kirkpatrick & Lockhart’s environmental
practice, please contact the authors or one of the K&L office contacts below. You may also
visit our website at www.kl.com.
Roger C. Zehntner
Boston
617.261.3149
rzehntner@kl.com
Robert Everett Wolin
Dallas
214.939.4909
rwolin@kl.com
R. Timothy Weston
Harrisburg
717.231.4504
tweston@kl.com
Frederick J. Ufkes
Los Angeles
310.552.5079
fufkes@kl.com
Daniel A. Casey
Miami
305.539.3324
dcasey@kl.com
William H. Hyatt, Jr.
Newark
973.848.4045
whyatt@kl.com
Warren H. Colodner
New York
212.536.3912
wcolodner@kl.com
Richard W. Hosking
Pittsburgh
412.355.8612
rhosking@kl.com
Edward P. Sangster
San Francisco
415.249.1028
esangster@kl.com
Barry M. Hartman
Washington
202.778.9338
bhartman@kl.com
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This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein
should not be used or relied upon in regard to any particular facts or circumstances
without&first
consulting
lawyer.
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