The Clean Air Act's Dirty Secret

The 1990 Clean Air Act Amendments (CAAA) are very complicated and could potentially cost industry in the U.S. almost $ 100 billion in compliance costs. The CAAA were signed into law by President George Bush on November 15, 1990. Congress’ major intent behind amending the 1977 Clean Air Act was to control the emission of Hazardous Air Pollutants (HAPs) and establish a permitting vehicle which would allow the public complete access to a facility’s emission/operational records as well as become cognizant of the various air pollutants being emitted by a facility.

Typical engine-powered equipment at a C&D recycling facility could consist of the following:

• Emergency Generators

• Screening Equipment

• Concrete Crushers

• Wood Grinders

• Tires Shredding and Processing

• Glass Crushing

• Boilers

• Specialized Processes for processing C & D Materials

• Metals Shredding and Recovery

CAAA Issues FOR C&D Operators

The main pollutant of concern to C&D recyclers is nitrogen oxides (NOx). EPA studies have shown that volatile organic compounds (VOCs) and NOx lead to the formation of ozone, which affects the respiratory system and is a health hazard. In an attempt to reduce ozone levels, EPA has designated different areas in the country as either “attainment” or “non-attainment” areas of ozone. Also, depending on the ozone levels, the ozone non-attainment areas are further subdivided into Marginal, Moderate, Serious, Severe and Extreme non-attainment areas of ozone. Los Angeles (well known for its smog problem) is the only extreme non-attainment area for ozone in the country.

The major concern for C & D recyclers is that depending on where their facility is located, just 10 tons per year of the potential to emit (PTE) of NOx (not actual emissions) could make their facility a “major source” under the CAAA and require them to file an operating permit (Title V Operating Permit) for the facility. It is possible that that if your facility has any of the above equipment and you are located in an ozone non-attainment area (e.g. any major city) you probably need a Title V Operating permit. For example, if your facility is located in a severe ozone non-attainment area, then the presence of just one of the following pieces of equipment could by itself, lead to the NOx PTE to exceed 25 tpy, thereby, mandating you to obtain a Title V Operating permit:

• 3100 kW Emergency Generator

• 140 kW Engine on a crusher/grinder

• 7.25 MM BTU/hr Boiler

Please note that the Title V Operating permit is a facility-wide “permit to operate” as opposed to the traditional air permit which is an equipment-specific “permit to pollute” that we have all become accustomed to in the past as we have sought pre-construction permits for a specific piece of equipment. EPA published the Title V Operating permit program (40 CFR 70) in July 21, 1992 and delegated the authority for issuance of permits under the program to the State Agencies. If a C & D facility is currently operating in violation of this Title V Operating permit program, then a “Stop Work Order” could be issued by the Administrator and a civil/criminal penalty levied against the owner/operator of such a facility.

Larger facilities in ozone attainment areas will be similarly impacted. Therefore, it becomes very essential to know a facility’s PTE for NOx and the ozone non-attainment status of the area in which the facility is located. (Table 1 describes the major source thresholds.)

PTE is defined as the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant (including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed) is allowed as part of its design if the limitation is federally enforceable. “Federally enforceable” means any limitation or condition on operation, production, or emissions that can be enforced by EPA. These limitations and conditions that can be enforced by EPA include, but are not limited to, those related to:

• Any standard of performance for new stationary sources (NSPS) promulgated at 40 CFR Part 60, or promulgated under 42 U.S.C. §7411;

• Any national emission standard for hazardous air pollutants (NESHAP) promulgated at 40 CFR Part 61, 40 CFR Part 63, or promulgated under 42 U.S.C. § 7412;

• Any standard or other requirement provided for in a State Implementation Plan (SIP) that has been approved by EPA, or promulgated through rulemaking by EPA; or

• Any permit or order issued pursuant to requirements established at 40 CFR 51, 40 CFR 52.21; 40 CFR Part 70; 40 CFR Part 71; or 40 CFR Part 72.

Unless you have federally enforceable permits restricting your hours of operation, your facility’s PTE is based on 8,760 hours of operation in a year (500 hours for Emergency Generators). The permit requirements are described in Title V of the CAAA. C & D operators located in the Northeast should be aware that Congress has designated the 12 states in the Northeast (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Northern Virginia and the District of Columbia) as an Ozone Transport Region (OTR). This makes the major source NOx threshold as 25 tpy (Severe non-attainment areas) or 50 tpy (all other areas) for any facilities located in the Northeast.

The non-attainment status of the various regions in the country can be determined by either checking with the respective State Air Quality Board or by visiting the EPA’s web site at http://www.epa.gov/oar/oaqps/greenbook. There are a lot of overlapping regulations issued by the EPA that require industries to place utmost importance on strategizing the various compliance issues mandated by the CAAA. The vehicle for demonstrating compliance with the CAAA is the Title V Operating permit. The author’s experience in preparing Title V Operating permit applications in 18 states has led to some interesting strategic ideas on minimizing costs subject to compliance while maintaining maximum operational flexibility allowed under the CAAA. The rest of this article discusses strategies of compliance with the Title V Operating permit program.

Elements Required to Formulate a Good Title V Operating Permit Strategy

Emission Inventory

In order to develop a good strategy it is very essential to begin with an accurate emission inventory. This emission inventory should be done for the worst case operating scenario. One should not only look at the actual emissions as one is always tempted to do but also the PTE after federally enforceable controls. This becomes significant in case of batch operations (as most of C & D operations are) wherein if the hours of operation are not specified by a federally enforceable permit, the PTE is based on the batch process operating 24 hours a day, 365 days a year or 8760 hrs. in a year.

Knowledge of Applicable

Air Regulations

It is very important to identify all the existing and future applicable air regulations as early as possible. This will later open up opportunities for emission trading, emission averaging, alternate emission limitations, early reduction program participation, etc. The hardest requirements to determine will probably be those that are contained in the state implementation plan (SIP). Typically, SIPs are submitted by the state agencies to the EPA in order to maintain the National Ambient Air Quality Standards (NAAQS) for the criteria pollutants in that particular state. These should, therefore, be investigated in great detail. The non-attainment status of the jurisdiction where a facility is located should also be determined, along with the probability of it changing with time. Many marginal ozone non-attainment areas have been “bumped up” to moderate ozone non-attainment areas if the design value of 0.12 ppm ozone level was not achieved by November 1993.

Operational Flexibility

Most facilities requiring operating permits will need flexibility to quickly change equipment, operating strategy, product lines, hours of operation, raw materials, and processes, in order to meet changing market demands, comply with new regulations, to take advantage of technological changes, and to reduce costs. This would enable a facility to maintain profitability and competitiveness. On the other hand, regulators prefer to see minimum changes in the above in order to provide them with the most confidence that the facility is operating within known and consistent parameters. The permitting challenge is to allow for operating flexibility while at the same time maintaining control over emissions and other factors related to regulatory compliance.

Good Negotiating Skills

Permitting is a process of negotiation. It has been noted that many a decision will be made on a “case-by-case” basis. “Case-by-case” is another way of saying that the permit applicant and the regulator negotiate the compliance requirements in the permit. Thorough preparation is an indispensable pre-requisite to successful permit negotiations. It is important to identify the legal and technical issues and be prepared to answer regulatory questions. If you ask the regulator what you must do, you will probably not like the answer.

Permit negotiations are successful when one enters these negotiations prepared to educate the regulator and bring answers (not questions) to the negotiating table. Regulators lack the time, process knowledge and sometimes lack the technical expertise to understand the nuances that make permitting a facility such a unique challenge. Before negotiating the permit, it is critical to identify the legal issues, technical issues and develop a facility compliance strategy to resolve these issues. A good successful permit negotiator is sensitive to the flexibility and constraints of the regulator.

Examples of Good Strategies

Perform Accurate and Detailed Emission Inventories

There are almost 300+ chemical compounds regulated by the CAAA. The impact of the CAAA on a facility will depend upon where a facility is located, as well as what it manufactures and what chemicals are being emitted. Typically, a good emission inventory should be conducted in conjunction with the worst case operating scenario in order to report the maximum air emissions. This will lead to higher operating permit fees but those may be insignificant as compared to the penalties described under Title VII of the CAAA.

Avoid the Title V Permit Process by Being a Synthetic Minor Source

This can be done by limiting the emissions to below major source threshold levels as described earlier in Table 1. States can limit the PTE of facilities using any of the following:

• New Source Review (NSR) approved into a SIP.

• Source-specific SIP revisions.

• EPA-approved state operating permit programs (Synthetic Minor Operating Permits).

• Air toxics programs established pursuant to Section 112 (l) of the CAAA.

• Seek the Permit Shield option to prevent possible enforcement action later.

The permit shield states that “Compliance with the conditions of the permit shall be deemed compliance with all applicable requirements in effect as of the date of permit issuance and as specified in the permit.” Some states allow it as part of their program while others require facilities to seek the permit shield. It is a good strategy to ensure that facilities have the permit shield in order to prevent enforcement actions later. Well prepared operating permit applications should describe all the applicable state/federal requirements in the following manner in order to further enhance the effect of the permit shield:

• Applicability

• Exemptions

• Control Requirements

• Monitoring, reporting and record keeping requirements

Ensure Process Confidentiality by Submitting Minimum “Confidential” Drawings

Just as the state agencies, EPA and the public get to review the operating permits, so too do the competitors. This is not a happy situation for those companies with proprietary processes that have spent a lot of monies on research and development in order to develop a unique product e.g.pharmaceutical, specialty chemicals, etc. By filing the operating permit(s) in different volumes, some marked “confidential”, it will allow the facility to maintain confidentiality on certain plant processes. This will be debated by the EPA as to the extent of the information that can be held confidential. However, seeking confidentiality is a good strategy considering some states (such as Illinois) require Process and Instrumentation diagrams (P &IDs) to be submitted as part of the operating permit application.

Minimize Sampling Costs - Use Engineering Estimates/Process Knowledge

Even though accuracy is a very important issue in the Title V Operating permit application submittal, actual emissions are really not “actual” emissions but rather estimated emissions using EPA approved factors such as the AP-42 method. Many times there are no EPA approved methods available to speciate the emissions for the 300+ chemicals. It is, therefore, a good strategy to use process knowledge, and engineering calculations to save mon .ey and yet estimate emissions accurately. C&D

The author is a principal with SVR Consulting Group Inc., Vienna, Va. He has a Master of Science degree in chemical engineering from Rice University, Houston, Texas and has over 22 years experience in managing air and wastewater projects. He has lectured extensively on the 1990 Clean Air Act Amendments for business executives and government agencies. Mr. Kapoor has managed the preparation of Title V Operating permit applications in 18 different states for clients in the metal recycling, concrete and wood recycling, refining, petrochemical, chemical manufacturing, aerospace, and the pulp and paper industries. He is presently helping recycling businesses obtain air permits and helping the Chemical Manufacturers Association to negotiate regulatory standards with the EPA.

He may be contacted at: svrgroup @yahoo.com