New EPA HAP Rule

Did you hear that the EPA has published a proposed rule with the intent of establishing a “framework” for handling newly listed hazardous air pollutants (HAPs)?

If not, here is what you may need to know:

On September 13, 2023, the EPA published a proposed rule in the Federal Register “Regulatory Requirements for New HAP Additions”.    A link to this rule can be found here: 2023-19674.pdf (govinfo.gov).   The rule also has an accompanying “Fact Sheet”, which can be found here: Fact Sheet_New HAP AdditionsFINAL_0.docx (live.com).

This framework is being developed because the EPA has not added a new HAP to the HAP list until 1-Bromopropane (1-BP) was added on January 5, 2022. Now that a new pollutant has been added to the HAP list, what does this mean?

Things to Consider:

• The EPA concluded that the statute does not support a new HAP being regulated by such a NESHAP unless and until the EPA first evaluates the specific HAP for regulation under CAA Section 112 and promulgates standards that include the new HAP.  The EPA is proposing language to be added, in the future, to 40 CFR Part 63, Subpart C to clarify this conclusion.
  1. This was done to avoid immediate expansion of regulatory obligations for plants emitting a newly listed HAP.
  2. This is being taken to mean that adding a new HAP added to the list cannot subject major industrial facilities to existing NESHAP rules (and that a NESHAP rule must either be new or revised to pick up the newly listed HAP).
• “Future actions within individual NESHAP will address rule-specific issues, including identification of the sources that emit the new HAP; promulgation of new standards, as warranted, that include the new HAP by either revising existing NESHAP standards or establishing new standards, as necessary, and identification of engagement and outreach needs with affected communities and other entities.”

However, this does not mean that there will be zero impacts when a new material is added to the HAP list:

• New HAPS “do count” towards a sources’ potential to emit (PTE) on the effective date of the listing of a new HAP.
  1. This means that a source (site) can become a “major source” due to the emissions of a new HAP substance.
  2. There could be immediate effects for regulation and permitting resulting from the addition of the new HAPs to the HAP-PTE, possibly resulting in a source becoming a “major source” for HAPs.
  3. This could cause a site to trigger Title V requirements (for being a Major source of HAPs…..10 TPY of any on HAP, or 25 TPY of any combination of HAPs).
  4. “The addition of the emissions of a newly listed HAP in the calculations of the PTE for a facility could change the facility status from an area source to a major source per the major and area source definitions in CAA section 112.”   If the source “does not elect to reduce its HAP emissions or PTE to maintain its area source status, as a major source it would be subject to the obligation to obtain a title V operating permit.”
  5. Under the title V operating permit program, the regulations provide that a timely application for a source applying for a part 70 permit for the first time is one that is submitted within 12 months after the source becomes subject to the permitting program.  Since different states can be more stringent than the federal requirements, companies should check with their title V permitting authority to determine when a timely part 70 application should be submitted.
  6. The EPA is calling facilities that become major sources purely by virtue of the emissions of a newly listed HAP as Major Sources Due to Listing (MSDL).

There is a definite incentive to keep track of any future rulemaking regarding the listing of a new HAP. The EPA has indicated that there may be more new HAP listings in the future.

If you have any questions about the information in this post, please contact us! We’d be happy to help you analyze the possible impacts of new HAP additions for your site