EPA Seeks to Remove Emissions Exemptions for RCRA and CERCLA Cleanups
By: Gregory J. May
On May 13, 2016, the United States Environmental Protection Agency ("EPA") published a Proposed Rule (81 Fed. Reg. 29821) amending the Site Remediation Rule of the National Emission Standards for Hazardous Air Pollutants ("NESHAP") promulgated under the Clean Air Act ("CAA"). The Proposed Rule would eliminate exemptions under the Site Remediation Rule for remediation activities performed under the Comprehensive Environmental Response and Compensation Liability Act ("CERCLA") and the Resource Conservation and Recovery Act ("RCRA"). The Proposed Rule also seeks to end the requirement in the existing Site Remediation Rule that site remediations be co-located with at least one other stationary source regulated by another NESHAP.
If the Proposed Rule is finalized as currently written, emissions from major RCRA and CERCLA cleanup sites will become subject to NESHAP limitations under the Site Remediation Rule, a significant change from existing EPA regulations. Comments on the Proposed Rule are due by June 27, 2016.
EPA promulgated the Site Remediation Rule in October 2003 under § 112 of the CAA. The Site Remediation Rule generally imposed NESHAP limitations on emissions from site remediation activity. At the time, however, EPA took the position that exemption of RCRA- and CERCLA-authorized cleanup programs from NESHAP limitations was appropriate because those programs had site-specific provisions protecting public health and the environment from hazardous air pollutants ("HAP") emitted during site remediation activities.
EPA reasoned in 2003 that cleanup programs under RCRA and CERCLA served as the "functional equivalents" of NESHAP because RCRA and CERCLA programs must address the same HAP emissions regulated by EPA under the CAA and NESHAP. EPA further believed that RCRA and CERCLA cleanup programs provided opportunities for public comment and involvement through the Record of Decision process (in Superfund cleanups) and the permitting process for corrective action cleanups (under RCRA).
In December 2003, environmental advocates led by the Sierra Club petitioned for judicial review of the exemptions to the Site Remediation Rule in the U.S. Circuit Court of Appeals for the D.C. Circuit. While the D.C. Circuit stayed proceedings, EPA and the petitioners embarked on a long settlement process which finally resulted in the Proposed Rule. EPA has now apparently changed course because it believes that once it listed "site remediation" in general as a source category under CAA § 112(c)(1), it is obligated under CAA § 112(c)(2) to extend emission standards to RCRA and CERCLA "site remediations" regardless of the regulatory nature of the site remediation activities.
Proposed Rule's Changes to the Site Remediation Rule
Under the Proposed Rule, certain "major" source sites with RCRA or CERCLA cleanup programs will be required to demonstrate "continuous compliance" with NESHAP limitations and work practice standards. A source is "major" if it emits or has the potential to emit any single HAP at the rate of 10 tons per year or any combination of any HAP at a rate of 25 tons per year.
A "major" source site that also cleans up remediation material containing 1 megagram per year or more of organic HAP (as listed in Table 1 of the Site Remediation Rule) will have to comply with emissions controls and/or work practice requirements for three types of emission points: (1) process vents; (2) remediation material management units (such as tanks, containers, surface impoundments, oil/water and organic/water separators, and drain systems); and (3) equipment leaks. Those "major" sites that do not meet the 1 megagram/year organic HAP threshold will only have to meet certain recordkeeping and documentation requirements.
To make the Proposed Rule applicable to RCRA and CERCLA site remediations, EPA also seeks to remove the requirement that an affected site remediation be co-located with a facility that is regulated by a separate NESHAP. According to EPA, this is necessary because site remediation facilities that are major HAP sources (by themselves and without regard for any co-location of another facility) should be covered by the Site Remediation Rule.
EPA has proposed different deadlines for compliance with emissions limitations depending on whether the site remediation is an "existing" or "new" affected source. An "existing affected source" is one where (1) construction or reconstruction of the affected source commenced prior to the date of publication of the Proposed Rule (i.e., May 13, 2016); and (2) the site remediation activities are overseen by EPA or another authorized agency such as a state or local environmental protection agency acting under RCRA or CERCLA. The compliance date for existing affected sources to meet process vent, remediation material management unit and equipment leak requirements is 18 months from the effective date of the Proposed Rule's removal of the RCRA/CERCLA exemptions.
"New affected sources" are those where (1) construction or reconstruction of the affected source started after May 13, 2016; and (2) the site remediation activities are overseen by EPA or a state/local environmental protection agency under RCRA or CERCLA. New affected sources must meet process vent, remediation material management unit and equipment leak requirements by the effective date of the Proposed Rule's removal of the RCRA/CERCLA exemptions.
All existing and new affected sources must comply with recordkeeping and reporting requirements by the effective date of the Proposed Rule's removal of the RCRA/CERCLA exemptions.
Potential Impacts of the Proposed Rule
EPA believes there will be minimal impact on existing cleanups under the Proposed Rule. EPA estimates that no more than 69 existing major source facilities will be subject to the Site Remediation Rule. EPA further predicts that, because of the low annual quantity of organic HAP contained in their remediation material, 24 of these 69 facilities will only be required to prepare written documentation showing total annual quantity of organic HAP is less than 1 megagram per year. The 24 sites will not have to comply with emissions limits or work practice, monitoring or recordkeeping requirements.
EPA expects that the remaining 45 existing major source facilities (with documented annual quantities of organic HAP in removed remediation material of 1 megagram or more) already meet emission control and work practice requirements of the Site Remediation Rule because waste is shipped offsite for treatment. Accordingly, EPA is predicting that these 45 facilities will only have to comply with new initial and ongoing recordkeeping and reporting obligations. EPA acknowledges that new site RCRA and CERCLA remediations will be conducted in the future, but states that it is "currently not aware of any specific new site remediation facilities that are expected to be constructed."
Whether EPA's predictions are correct remains to be seen. A major source facility with ongoing CERCLA cleanup activity could be subjected to significant and unforeseen annual compliance costs as a result of the emissions limitations imposed by the Proposed Rule. Ongoing state and local brownfields programs may also be subject to unexpected NESHAP limitations, compliance with which will require additional funding.
Our environmental team at Nelson Mullins will continue to monitor the comment and hearing process on the Proposed Rule and will provide updates as to any significant developments. If you have any questions, please contact any member of our team.
Wendy Wilkie Parker
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.