[*PG229]CONTROL OF HAZARDOUS AIR POLLUTION

Arnold W. Reitze, Jr.*
Randy Lowell, Esq.**

Abstract:  This article begins with an overview of ecosystem and human health impacts of hazardous air pollutants (HAPs) and is followed by a synopsis of the early efforts to control HAPs that were based on common law and the Clean Air Act (CAA) prior to 1990. In the CAA Amendments of 1990 Congress added a twenty-fold expansion of the statutory provisions aimed at the control of HAPs . In the decade that followed the Environmental Protection Agency (EPA) has generated thousands of pages of rules and guidance to implement the 1990 statutory changes. This article provides an analysis of these requirements and the program created to implement them. Several categories of HAPs are the subject of a more in depth analysis including asbestos, synthetic organic chemicals, and emissions from incineration. The article then examines the requirements aimed at preventing accidental catastrophic environmental releases of HAPs and the risk management plans that must be developed by about 70,000 facilities that handle regulated chemicals. The emergency planning and reporting requirements imposed in 1986 by the Emergency Planning and Community Right to Know Act (EPCRA) also are addressed.

I.  Introduction

A.  The Hazardous Air Pollution Problem

In 1984, the Union Carbide toxic chemical release in Bhopal, India that killed about two thousand people focused attention on [*PG230]hazardous pollutants, particularly airborne hazardous pollutants.1 A subsequent chemical release from a West Virginia facility drew attention to the problem here in the United States.2 Congress responded by introducing a toxics reporting requirement in 1986 and increased implementation and regulation of hazardous air pollutants (HAPs) under the Clean Air Act (CAA) in the 1990 Amendments.3

In 1986, Title III of the Superfund Amendments and Reauthorization Act (SARA) created the free-standing Emergency Planning and Community Right-to-Know Act (EPCRA).4 Sections 11021–11023 of EPCRA mandate reporting to the Environmental Protection Agency (EPA) on the amount of toxic substances released into the air each year by industry. This toxic release inventory (TRI) must include releases of more than 320 chemicals included in the Committee Print Number 99–169 of the Senate Committee on Environment and Public Works.5 The statute also provides for EPA’s Administrator to add chemicals to the list, and any person may petition the Administrator to add or delete chemicals.6 Since July 1, 1988, industries with standard industrial classification (SIC) codes of 20 to 39 that have ten or more full time employees and that handle regulated chemicals above threshold amounts have to meet the annual TRI reporting requirements.7 The threshold amount is 25,000 lbs/year for 1989 and subsequent years.8

The first year of submissions showed HAPs were released in amounts estimated at 2.18 billion lbs/year.9 This did not include emissions from federal facilities or from facilities exempted because of their small size or less than threshold use of chemicals.10 It also did [*PG231]not include emissions to water or land that indirectly become air pollutants (e.g., evaporation). Nor did it include the release of hazardous materials not on the EPA list.11 The size of this toxic chemical emissions inventory had a significant effect on the public perception of the hazardous chemical problem and helped spur Congress to regulate these emissions.12

In 1997, 21,490 facilities filed 61,123 Form Rs13 as required by EPCRA.14 According to the TRI data, the total releases to land, air, and water were 2.58 billion pounds of the 643 chemicals subject to EPCRA reporting requirements.15 Air emissions comprised 62.9% of all on-site toxic releases.16 This reporting did not include releases from electric utilities, motor vehicles, or from emission sources with less than ten employees.17 The top states for total releases in 1997 were Texas with 261.7 million pounds, Louisiana with 186 million pounds, and Ohio with 158.7 million pounds.18 The hazardous chemical most released to the air in 1997 was methanol with air emissions of 194.4 million pounds.19 Ammonia ranked second with air releases of 156.1 million pounds.20 Air emissions represented over three-fourths of the total on-site and off-site releases for twelve of the top twenty chemicals.21 In addition to methanol and ammonia, these were toluene, xylene, n-hexane, chlorine, hydrochloric acid, methyl ethyl ketone, carbon disulfide, dischloromethane, styrene, and glycol ethers.22 Over 50,000 chemicals are in commerce in the United States, [*PG232]and approximately 14,000 of those are releases in quantities over 10,000 lbs/year.23 Fewer than 1000 of these chemicals have been properly evaluated for toxicity because of lack of resources by the regulating government agencies.24

EPA used three approaches in the early 1990s to obtain reductions in toxic releases. They were: (1) the Toxic Release Inventory required by EPCRA; (2) the voluntary 33/50 program to encourage a 33% reduction of releases of seventeen toxic chemicals by the end of 1992 and a 50% reduction by the end of 1995;25 and (3) the Early Reduction Program, under CAA section 112, to reward industry with a six-year extension for meeting CAA emission standards if the industry made a 90 to 95% reduction in toxic air emissions before the maximum achievable control technology (MACT) standards are proposed.26 The United States General Accounting Office made a study of the effectiveness of these efforts and concluded that there was little evidence that the 33/50 or Early Reduction programs had a meaningful benefit.27

According to TRI reports, during the period from 1988 to 1992, toxic releases to air, water, and land were reduced by 35%, or about 1.7 billion pounds.28 Over 50% of the reduction involved four chemicals—acetone, ammonium sulfate, chlorine, and hydrochloric acid. Also, over 40% of the reductions occurred in three states—Louisiana, Texas, and Virginia.29 Reductions, however, are reported by the companies making the releases, but they are not verified by EPA or the states,30 and EPA states that much of the reported TRI reduction is due to (1) changes in how chemicals are reported; (2) changes in how releases are estimated; and (3) decreases in production levels.31

[*PG233]B.  Ecosystem Impacts of Hazardous Air Pollution

Industrial sources in the United States subject to TRI reporting requirements emitted about 1.332 billion pounds of toxic air emissions into the atmosphere in 1997.32 Emissions from automobiles, pesticide use, municipal waste incineration, and other combustion processes not included in the TRI report were responsible for additional toxic air pollutant releases.33 Much of this pollution is eventually deposited on land or water.34

Some pollutants remain airborne and contribute to air pollution problems far from the pollution source. Other pollutants released into the air can be deposited to land and water through precipitation, or by settling directly out of the air into land or water. Eventually, a large portion of those pollutants deposited near water bodies or small tributaries will reach the water bodies via stormwater runoff or inflow from tributary streams.35

After deposition, some of these chemicals bioaccumulate in living organisms and can become more concentrated at higher levels in the food chain (a phenomenon known as biomagnification).36 Dichlorodiphenyltrichloroethane (DDT), for example, has bioaccumulated in the Great Lakes where it has an adverse effect on fish, birds, and other wildlife.37 Another problem involves “persistent” air toxics, such as mercury or lead, that can remain for a long time (sometimes forever) in the environment and can be transported long distances.38 Some toxic air pollutants are precursors that can lead to compounds such as ozone, acid aerosols, and carcinogenic hydrocarbons that form in the atmosphere over large areas of North America.39 One government study says that air deposition of lead and [*PG234]polychlorinated biphenyls (PCBs) account for 90% or more of those compounds entering Lake Superior.40

The 1990 CAA Amendments, in section 112(m), require the Administrator, in cooperation with the Under Secretary of Commerce for Oceans and Atmosphere, to study the extent of atmospheric deposition of HAPs to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters.41 Monitoring of these waters is required,42 and a report by the Administrator is to be used to promulgate further emission standards or control measures for HAPs (and their atmospheric transformation products) as may be necessary and appropriate.43 EPA has monitored some toxic compounds in the Great Lakes since the 1980s and in the 1990s began to measure deposition in the Chesapeake Bay.44

The first report required by section 112(m) was released in May 1994; the second report, “Deposition of Air Pollutants to the Great Waters,” was sent to Congress on July 1, 1997.45 It confirmed the conclusion of the first report that toxic air pollutants deposited in the waters identified in section 112(m) were having an adverse impact on their ecosystems. The fifteen pollutants of concern that are the focus of the reports are: cadmium and cadmium compounds; chlordane; DDT/DDE; dieldrin; hexachlorobenzene (HCB); a-hexachlorocyclohexane (a-HCH); lindane; y-hexachlorocyclohexane (y-HCH); lead and lead compounds; mercury and mercury compounds; (PCBs); polycyclic organic matter (POM); tetrachlorodibenzo-p-dioxin (TCDD; dioxins); tetrachlorodibenzofuran (TCDF; furans); toxaphene; and nitrogen compounds.46 The report, however, concluded that no additional [*PG235]legislation was needed because the existing section 112 provides adequate authority to deal with the problem.47

C.  Human Health Impacts of Air Toxics

Stationary and mobile sources emit many different air pollutants to which large populations are exposed. Some air pollutants have toxic and/or carcinogenic effects following direct inhalation exposure (e.g., carbon monoxide and benzene).48 Others, such as lead and arsenic, reach humans by a variety of pathways including direct inhalation, inhalation of resuspended dust, ingestion of contaminated food products, ingestion of contaminated water, and skin contact with contaminated soil, water, or dust.49

Industrial and agricultural workers often are exposed to many toxic substances in the air in concentrations above those to which the general population is exposed. Such exposures can cause cancer or a wide range of non-cancer health effects.50

Building occupants may be exposed to radon and its decay products as well as to many airborne combustion products, including nitrogen dioxide and environmental tobacco smoke. Indoor exposures to toxic agents in consumer products (e.g., solvents, pesticides, formaldehyde) also can cause cancer and a range of non-cancer health effects.51 Due to the large population directly exposed to a number of agents, some of which are highly toxic, this problem poses relatively high human health risks.52

The known harm caused by these chemicals includes an estimated three thousand cases of fatal cancer each year as well as birth defects, lung disease, nervous system disorders, immune system disorders, endocrine system disorders, neurological problems, liver damage, and other health problems.53 In 1999, a preliminary study in southern California indicated that exposure to ten HAPs may be responsible for an additional 426 cancer cases per million exposed [*PG236]individuals.54 Very little is known about health problems, other than cancer, caused by air pollutants, because most testing has been for carcinogenic properties.55 In addition, EPA announced that it has “fair or better” data available only on twenty HAPs and that the health effects data for other HAPs is “spotty.”56

The Mickey Leland National Urban Air Toxics Research Center (Center) was created under the authority of CAA section 112(p).57 The statute requires that it be located in Harris County, Texas.58 One of its responsibilities is to direct a sound research program to better understand the risks posed to human health by toxic chemicals in the urban air. To do this, the Center researches the effects of the 189 materials Congress has identified in CAA section 112(b).59 The Center issued a strategic research plan in 1997 that focuses the Center’s activities on human health effects, community programs, and personal exposure.60 The plan is reviewed annually.61

On May 23, 1996, the Agency for Toxic Substances and Disease Registry published its methodology for calculating minimal risk levels.62 Minimal risk levels (MRLs) are screening tools to determine whether acute (1 to 14 days), intermediate (15 to 364 days), or chronic (365 days or more) exposure to a chemical poses a threat to human health and therefore merits investigation.63 Such evaluations are done for both inhalation exposure and oral exposure.64 As of [*PG237]February 2000, the agency has calculated 286 risk levels for 136 chemicals.65

D.  Common Law Control

Despite the comprehensive regulatory regime, a business is not necessarily protected from common-law state actions for nuisance, negligence, strict liability, or trespass for harm to an individual resulting from a hazardous air release. The United States Supreme Court once stated that “air pollution is . . . one of the most notorious types of public nuisance in modern experience.”66 The CAA specifically provides that nothing “shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief . . . .”67 While the CAA may preempt claims in federal courts, it does not stop actions brought under color of state law nor does the permit shield doctrine apply to estop assertion of a claim.68

II.  Pre-1990 CAA Section 112

HAPs have been subject to control since 1970 by CAA section 112,69 which provides for National Emission Standards for HAPs, known as NESHAPs. Prior to the 1990 CAA Amendments, the Administrator of EPA was required to publish a list of pollutants deemed hazardous.70 Within 180 days of publication, proposed regulations were to be promulgated and within the following 180 days, either an emission standard was to be set or the Administrator had to find that the listed pollutant was not a HAP.71 The Administrator was to set emission standards “at the level which in his judgment provides ample margin of safety to protect the public health from such hazardous air pollutant.”72

[*PG238] The statutory time frame was unrealistic. The data and testing methods were inadequate, and the risk analysis approach proved controversial at the time.73 It typically took from four to seven years from the time EPA identified a chemical as a candidate until a final regulation was issued.74 Thus EPA resisted using section 112. After twenty years, EPA had regulated only seven hazardous substances—asbestos, beryllium, mercury, radionuclides, inorganic arsenic, benzene, and vinyl chloride.75 EPA issued notices and health effects information on twenty-five other substances but never completed the regulatory process. For example, coke oven emissions were listed,76 but no standard under the pre-1990 CAA was ever promulgated.77 A notice of intent to list chromium or hexavalent chromium under section 112 was as far as EPA ever moved to regulate that chemical.78

Although a few hazardous chemicals were regulated, only a limited number of circumstances involving their use were covered by the regulations. For example, arsenic emissions were controlled at primary copper smelters, glass manufacturing plants, and arsenic plants.79 Vinyl chloride had similar restrictions on its regulatory applicability.80 Mercury emissions from electric power plants were exempt from the standards even though they contribute to the high mercury levels of fish in the Great Lakes.81

[*PG239] Radionuclide regulations control radon-222 emissions from a variety of sources.82 National standards, however, for radon for Department of Energy facilities were not promulgated until 1989,83 and radon emissions from phosphogypsum stacks were not regulated until 1992.84 Radionuclides from elemental phosphorus plants were regulated in 1989,85 but EPA changed the standard86 on December 19, 1991.87

In 1989 EPA regulated radon emissions from operating mill tailings88 and from uranium mill tailings disposal sites.89 Radon emissions from inactive sites are regulated under both the CAA and the Uranium Mill Tailings Radiation Control Act (UMTRCA).90 EPA proposed to amend the UMTRCA to include monitoring and closure requirements.91 It planned to make the UMTRCA the vehicle to regulate mill tailing disposal sites and to transfer the responsibility to implement the requirements to the Nuclear Regulatory Commision (NRC).92 There are approximately twenty NRC-licensed waste piles that are primarily located in the western states.93 The remaining waste is scattered in outdoor piles that range in size from a few acres to several hundred acres.94 The December, 1989 EPA rules require earth covers over the piles in order to limit radon emissions to an acceptable level, but the NRC claimed these rules duplicated their authority.95 EPA claimed that under the 1990 CAA Amendments it [*PG240]may transfer this authority to the NRC,96 and in September, 1992 appeared ready to give the NRC this responsibility.97 However, on September 25, 1992, the U.S. Court of Appeals for the D.C. Circuit ruled that EPA does not have authority to suspend emission standards for radionuclides from sources regulated by the NRC except with respect to the NRC-licensed medical facilities.98 The court rejected EPA’s argument that CAA section 112 permitted broad suspension of the radionuclide rules.

Although EPA regulated only a few HAPs, even the short list of regulated hazardous pollutants was the result of litigation that forced EPA to regulate. For example, the court in Sierra Club v. Gorsuch99 ordered EPA to regulate radionuclides.100 EPA’s failure to act later led to a contempt order.101 A similar case, New York v. Gorsuch,102 led to a court order requiring organic arsenic to be regulated.

[*PG241] The failure of EPA to seriously regulate HAPs led Congress in the CAA Amendments of 1977 to encourage EPA to act. The definition of “hazardous air pollutant” was expanded to mean “an air pollutant to which no ambient air quality standard is applicable and which in the judgment of the Administrator causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible or incapacitating reversible illness.”103 A new section 122104 was added to the CAA that required the Administrator to study the need for regulating radioactive pollutants, cadmium, arsenic, and polycyclic organic matter. If any of these substances, when released to the ambient air, would cause or contribute to air pollution that might reasonably be anticipated to endanger public health, they were required to be regulated.105 These CAA changes had little effect on EPA’s efforts to regulate HAPs.

The control of hazardous emissions under the 1977 CAA Amendments was not as stringent as the action being taken under the Clean Water Act (CWA). The CWA regulated only six toxic substances when the Natural Resources Defense Council (NRDC) sued EPA in 1975.106 In June, 1976 a consent decree was approved requiring EPA to regulate sixty-five pollutants and classes of pollutants. In the 1977 CWA, the consent decree was codified in sections 301(b)(2)(A) and 307(a)(1) that required a readjusted list of 129 toxic water pollutants to be regulated. The consent decree, however, continued to be enforceable even if its provisions were beyond the scope of the 1977 CWA Amendments.107

EPA’s reticence to use CAA sections 112 and 122 was due not only to the short time period provided for promulgating regulations, but also was due to the agency’s interpretation that the statute did not allow cost and technology availability to be considered in setting standards.108 Section 112 appeared to require that, once a hazardous pollutant was listed, a no-risk standard must be set regardless of [*PG242]cost.109 In situations where there was scientific uncertainty as to the threshold of exposure below which there is no risk, section 112 seemed to require a zero-emissions standard.110 Thus, for carcinogens or substances with no known safe level, EPA believed no emissions could be allowed.111 Therefore, the use of section 112 might result in regulations so harsh that major segments of the economy would be adversely impacted.112 In addition, the time allowed for compliance after regulations were promulgated was unrealistically short because industry was required to implement section 112’s requirements in two years or less.113 Thus industry could face penalties for failing to comply with requirements that were impossible to meet.114

In 1976 EPA set a final emission standard for vinyl chloride, a gaseous synthetic chemical used to manufacture polyvinyl chloride plastics.115 It is a human carcinogen known to cause liver cancer and had been implicated as a cause of cancer in other organs, such as the brain and the lungs.116 The Environmental Defense Fund (EDF) sued EPA claiming that cost and technology factors had been considered in deciding to require a 95% emission reduction.117 A settlement agreement required EPA to make its vinyl chloride standards stricter.118 EPA proposed new regulations in June, 1977,119 but took no final action during the next seven years.120 In 1985 EPA withdrew the proposed standards121 and proposed in their place the 1976 [*PG243]regulations with minor revisions.122 The NRDC then sued to challenge the rescission.

In NRDC v. EPA,123 the U.S. Court of Appeals for the D.C. Circuit, en banc, held that EPA must set section 112 standards using a two-prong procedure.124 EPA reasoned that, due to the scientific uncertainty surrounding safe levels of exposure to vinyl chloride, it was authorized under section 112 to consider economic and technological factors in establishing emission levels.125 Based on this reasoning, EPA advocated emission levels set in accordance with the best available control technology.126 EPA argued that consideration of health factors alone in this situation would require complete prohibition of the carcinogen because a safe level could not be conclusively determined.127

The court rejected the NRDC position that section 112 demands a zero emission standard when a no-risk threshold cannot be determined.128 “Safe” does not mean “risk-free” according to the D.C. Circuit.129 While deferring to EPA’s construction of the statute and agreeing that economic and technological factors are permissible considerations within the Administrator’s discretion under section 112, the court held that the clear intentions of Congress relating to safety must be satisfied prior to any consideration of economics and technology.130 The D.C. Circuit established a two-step process requiring the Administrator to first make a determination of safety, exclusive of other factors.131 Only after safety is assured may the Administrator consider economic and technological factors to “diminish as much of the statistically determined risk as possible by setting the standard at the lowest feasible level.”132 This decision made the legal validity of other section 112 standards suspect because some [*PG244]standards were set after considering costs. On September 14, 1989, EPA promulgated a new standard for benzene.133 This and one of the [*PG245]radionuclide standards134 were the only standards established after the NRDC case and prior to the 1990 CAA Amendments.135

In 1989, EPA established its risk policy by deciding that the life-time excess risk of cancer, or maximum individual risk (MIR), to any given toxic should not be greater than one in 10,000 (1 x 10–4).136 In the same year, EPA promulgated its final rule for radionuclides, that protects the public from a MIR risk of 1 x 10–4 but also regulates to protect 90% of the people within eighty kilometers of a source to risk levels of 1 x 10–6 137 using the two-step approach required by the NRDC v. EPA case.138

While EPA was reluctant to regulate hazardous emissions under section 112, some regulation occurred using other sections of the CAA. Under the basic state implementation plan (SIP) program, both particulate matter and hydrocarbons, which frequently are hazardous pollutants, are regulated.139 CAA section 111, regulating new and modified sources, imposes technology-based controls to reduce hazardous emissions.140 For example, fluorides from phosphate and aluminum plants, sulfuric acid mist from acid plants, and sulfur compounds from pulp mills are controlled through the new source performance standards (NSPS) process. NSPS for wood stoves were promulgated specifically to regulate toxics.141 CAA subchapter II, controlling mobile sources, also results in reductions in HAPs,142 as does CAA section 211, which authorizes the regulation of fuels and fuel additives.143

[*PG246] In 1985, EPA announced a policy of shifting the control of hazardous emissions to the states.144 This approach pressed for more control over small area sources, such as gasoline stations, dry cleaners, and small combustion sources. A few states, such as New Jersey and California, moved to aggressively control hazardous emissions.145 These states regulated a total of 708 different HAPs. Because the CAA allowed states to regulate air toxics for which national standards did not exist, however, state programs were not consistent and differed in their degree of stringency.146 Thus, public exposure to toxic air pollution could vary from state to state.147

EPA’s limited regulation of air toxics was especially poor when contrasted with the federal regulation promulgated to control air pollutants in the workplace. The Occupational Safety and Health Administration (OSHA) set standards for almost 428 substances harmful when released into the air.148 Most of the substances on the EPCRA list are included in the regulation by OSHA. These regulations, however, were vacated and remanded by the U.S. Court of Appeals for the Eleventh Circuit because OSHA did not show that existing limits presented a significant health risk or that the new standards were economically or technologically feasible.149

In 1990, a new technology-based regulatory program was created to control HAPs.150 The new section, however, 112(q) adds a “savings provision” that preserves the existing NESHAP in 40 C.F.R. part 61 until they are amended.151 NESHAPs in part 61 must be reviewed and, if appropriate, revised to comply with the standard-setting requirements of the new section 112 within ten years of November 15, 1990.152 If standards that were promulgated and judicially challenged [*PG247]before November 15, 1990 are remanded to EPA, the Agency has the discretion to apply either the requirements of the new section 112 or the former section 112.153 The effect of section 112(q) is to continue the existing provisions of part 61 for sources affected by pre-1990 NESHAP.154

III.  The 1990 CAA Amendments

The almost complete failure of section 112’s NESHAPs to control HAP emissions led to a different approach in the 1990 CAA Amendments.155 The old chemical-by-chemical risk-based approach could have led to a “no emissions standard” for many chemicals because any emission arguably would create some risk.156 The old section 112 imposed standard setting requirements that were so strict that EPA tried not to use it, resulting in just seven regulated HAPs.157 The pre-1990 CAA section 112 was one and a half pages of text,158 but the 1990 amendments created a new CAA section 112 that fills twenty-eight pages.159 The 1990 approach to the regulation of HAPs is similar to the program created by section 307 of the CWA that is predicated on requiring the best demonstrated technology used by sources in an industrial category.160 To accomplish this, the new CAA section 112 in 1990 became much more complex, establishing a two-tiered regulatory approach in which the first component consists of developing technology-based standards (the “maximum achievable control technology” standards, or MACTs) and then a second, risk-based approach is to be used to assess the success of the MACT standards.161

[*PG248]A.  Definitions Section 112(a)

“Major source” is defined broadly to include groups of stationary sources in a contiguous area that are under common control.162 It is a stationary source with the potential to emit ten tons per year (tpy) of any HAP or twenty-five tpy of any combination of HAPs. For radionuclides, however, EPA can establish a different criteria.163 Note that “stationary source” is defined at section 111(a)(3) as any building, structure, facility, or installation which emits or may emit any air pollutant.164 The Administrator may establish a lesser quantity of pollutant emissions for the definition of a major source based on various characteristics of the pollutants being emitted (including potency, persistence, potential for bioaccumulation, or other relevant factors).165

An “area source” is any stationary source of HAPs that is not a major source (e.g., a dry cleaner is an area source if its emissions are below the trigger amount).166 Motor vehicles are not included.167 A “[n]ew source” is a stationary source constructed or reconstructed after regulations are proposed.168 A “hazardous air pollutant” is any air pollutant listed under section 112(b).169 An “adverse environmental effect” is any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources.170 It seems to expand the “effects on welfare” defined in section 302.

B.  Pollutants Covered

Section 112(b)(1) originally listed 189 HAPs; the list is used to determine the chemicals to be regulated within industrial source categories. This list evolved from lists of pollutants found in: the list of substances regulated under the toxic release inventory program of [*PG249]section 313 of the EPCRA;171 high-priority environmental contaminants listed pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 104(i) by the Agency for Toxic Substances and Disease Registry (ATSDR);172 and pollutants in the National Air Toxic Information Clearinghouse (NATICH) database for July 1986 that had an ambient concentration established by at least one state.173 While the list is based on the lists of chemicals found in other statutes, the current list of 188 hazardous pollutants under the CAA is the second smallest compared to the other major statutes, with the CWA listing 148, OSHA listing 450, RCRA listing 502, and EPCRA listing almost 600.174 The list resulted largely from a preference by Congress for an EPA-prepared list rather than one derived from the legislative process.175 Chemicals regulated under CAA subchapter VI dealing with stratospheric ozone are not regulated under section 112.

Section 112(b)(2) allows EPA to add pollutants that present a threat of adverse human health effects or adverse environmental effects due to ambient concentration, bioaccumulation, or deposition.176 Any person can petition EPA to add to the list, and the Administrator must grant or deny the petition with a written explanation.177 EPA is currently gathering exposure data and health effect information in a two-year process while it considers listing hydrogen sulfide as a hazardous air pollutant under the CAA.178 There is also a procedure for deleting a substance from the list, which in 1996 resulted in the delisting of an HAP.179 The Administrator has eighteen months to act on a petition for delisting, and as of this [*PG250]writing there are two petitions pending to delist methyl ethyl ketone180 and methanol.181 EPA periodically updates the lists.182

Section 112(b)(4) allows the Administrator to use any authority available to obtain information on health or environmental effects of a substance.183 Thus, for example, EPA could use provisions such as the CAA section 114, CERCLA section 104(i), or several provisions in the Toxic Substances Control Act (TSCA).

C.  Source Categories

EPA was to publish, within one year of enactment of the 1990 CAA Amendments, a list of categories of major and area sources emitting one or more listed HAPs.184 Categories of area sources may be listed subject to the additional requirements of section 112(c)(3), if the Agency finds a threat of adverse effects to human health or the environment (by such sources individually or in the aggregate) that warrants regulation under section 112.185

The term “stationary source” has the same meaning under section 112 as it has under section 111(a), which is any building, structure, facility, or installation which emits or may emit any air pollutant.186 However, EPA may aggregate emissions from a site even if they are emitted from sources with different standard industrial classifications (SIC codes).187 Thus, the definition of “source” may differ under section 112 from the definition applicable under section 111.188 Section 112 applies to all stationary sources emitting HAPs, thus this section covers a building, structure, facility, or installation that emits HAPs.189 Whether such source is considered “major” will [*PG251]depend upon the size and configuration of the source itself or of the larger source of which it is a part.190

A “category” of sources is a group of sources having some common features, suggesting that they should be regulated in the same way and on the same schedule.191 Thus, for example, industrial process cooling towers would be considered a source category.192 Each cooling tower emitting more than the amount of HAPs provided in section 112(a) that qualifies a source as a major source, or each cooling tower located within a larger source emitting that amount of HAPs, would be subject to MACT for major sources.193

On July 16, 1992, EPA published an initial list of categories of major and area sources of HAPs, as required under section 112(c)(1) of the 1990 CAA.194 The preliminary draft list was compiled from a number of databases, including the National Emissions Data System (NEDS) and the Toxic Release Inventory System (TRIS).195 These were augmented by a review of the available scientific literature. For example, categories of the synthetic organic chemical manufacturing industry (SOCMI) were identified from literature describing SOCMI reactants and products.196 A SOCMI category was listed if it either manufactured a chemical on the list of HAPs or if it used one or more of the listed HAPs to produce another chemical.197 Published production and consumption data for organic chemicals also were used to identify organic chemical end-user processes emitting HAPs.198 This list does not include the sources subject to the requirements under section 112(c)(6) that requires EPA to identify and control sources responsible for 90% of the emissions of certain chemicals,199 nor does it include all categories of major and area sources meeting the listing criteria in section 112(c)(1) because of [*PG252]uncertainties in the available databases concerning sources and emissions of HAPs.200 The initial list contained 174 categories—166 major and eight area sources.201 On December 3, 1993, EPA published a schedule for promulgation of the MACT standards following the ten-year guideline found in section 112(e)(1),202 and by November 15, 2000, EPA is to have completed issuing emission standards for the listed source categories.203

Under section 112(c)(5) and (9), the Agency may add or delete a category from the list.204 An addition may occur when the Administrator finds that a category meets the criteria, at which point the emissions standards shall be promulgated by November 15, 2000, or two years after the date the category is listed, whichever is later.205 A deletion may occur based on a petition of any person or on the Administrator’s own motion, upon a determination that: (1) in the case of sources that emit HAPs that may result in cancer, no source in the category (or group of sources in the case of area sources) emits HAPs in quantities that may cause a lifetime cancer risk greater than one in a million to the most exposed individual; or (2) in the case of sources that emit HAPs that may result in non-cancer adverse health effects or adverse environmental effects, emissions from sources in the category (or group of sources in the case of area sources) do not exceed a level adequate to protect public health with an ample margin of safety, and no adverse environmental effects will result.206 The Agency is to grant or deny a petition to delete a category within one year after the petition is filed.207

Section 112(c)(1) requires EPA to periodically amend the list in response to public comment or new information, and no less often than every eight years.208 The listing of categories is therefore an ongoing process. Since the initial list and schedule, there have been [*PG253]several revisions.209 On June 4, 1996, EPA revised the initial list of industrial categories subject to MACT.210 Note that the list did not use the SIC code approach that is used under the PSD, NSR, NSPS, and operating permit programs. EPA’s approach was approved by the D.C. Circuit Court of Appeals in National Mining Association v. EPA.211 The revision formally added seven major source categories, one area source category, and deleted five major source categories, and one area source category.212 More revisions were made on July 18, 1996213 and on February 12, 1998.214 On April 10, 1998, EPA promulgated additional source categories subject to the section 112(c)(6) requirements to reduce specified pollutants by 90%.215 A revised emissions standards promulgation schedule was published on May 17, 1999.216 On November 18, 1999, a revised schedule and category list was published.217

Various other Agency actions may trigger the need to list, revise, or delete categories.

(1) The Agency may list categories of area sources pursuant to a number of authorities in section 112.218

(2) The Administrator may delete categories of sources on its own motion or on petition.219

[*PG254](3) The Agency may revise the list to delineate the applicability of “case-by-case” emission standards pursuant to section 112(j), in instances where the Agency desires to delimit the affected sources because it may not establish a Federal emission standard by the deadline in the regulatory schedule for standards.220

(4) The Agency may revise the regulatory schedule for standards associated with a listed source category, heeding the limitations in section 112.221

(5) After investigation EPA may revise the regulation if it has been determined that the titles or descriptions of some categories of sources can be amended to clarify the applicability of the ensuing emission standard, or a category may be included under a different, more appropriate industry group.222

Section 112(c)(3) required that the Agency list, within five years, sufficient categories of area sources223 to account for 90% of the aggregate emissions of each of thirty or more HAPs determined to present the greatest threat to public health in the largest number of urban areas.224 Section 112(c)(6) required the listing within five years, of categories of sources assuring that the sources of at least 90% of the aggregate emissions of each of seven specific pollutants that are subject to emission standards under section 112(d) are controlled by November 15, 2000.225

Section 112(e)(4) states that, notwithstanding section 307 of the Act, no action of the Administrator listing a source category or subcategory under section 112(c) shall be a final Agency action subject to judicial review, except that any such action may be reviewed under section 307 when the Administrator issues emission standards for such pollutant or category.226

[*PG255] On July 21, 1995, the United States Court of Appeals for the D.C. Circuit ruled on a petition for review of an EPA order concerning three aspects of EPA’s definition of “major source” as applied to the CAA section 112 hazardous air pollutant program.227 The issues were:

(1) whether EPA may require all hazardous emissions from a plant site to be aggregated even if they are emitted from sources with different industrial classifications (SIC codes);228

(2) whether EPA may require “fugitive emissions” to be counted in a source’s aggregate emissions to determine whether it is a major source;229 and

(3) whether EPA may limit a source’s ability to reduce its “potential to emit” by allowing only “federally enforceable” emission controls and limitations to be used.230

EPA was challenged under the provisions of CAA section 307(d)(9), which states that EPA rules that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or in excess of EPA’s “statutory jurisdiction, authority, or limitations,” must be set aside.231 Procedural errors will invalidate a rule only “if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.”232

The court dealt with the first question by noting that section 112(a)(1) says nothing about combining emissions only from sources within the same source category or SIC code.233 The court went on to say: “[i]ndeed, one could infer from  112(a)(1) a congressional intent, in the context of hazardous air pollution regulation, to override Alabama Power.234 The court further noted that “major source” was defined under the Title V operating permit program and the ozone nonattainment area provisions to mean a “group of sources located within a contiguous area and under common control.”235 This approach has been interpreted by EPA to mean a group of sources [*PG256]with a common industrial grouping—that is, with the same two-digit SIC code.236 But the court also held that EPA was not bound to any single definition of “major source.”237 The court held the Agency’s construction was reasonable, and it upheld EPA’s interpretation of “major source.”238 Addressing the second issue, concerning fugitive emissions, the Court of Appeals for the D.C. Circuit supported EPA’s interpretation: fugitive emissions may be counted in a source’s aggregate emissions.239

On the third question concerning limiting “potential to emit” to federally enforceable measures, the court granted the petition for review and noted, “EPA has not explained why it is essential that a control be included within a SIP.”240 The court went on to criticize EPA, stating that the CAA Amendments do not “suggest that Congress necessarily intended for state emissions controls to be disregarded in determining whether a source is classified as ‘major’ or ‘area’ under that national standard.”241 The court also noted, “EPA has not explained why the criteria for federal approval and the consequences of that approval are related to ensuring the practical effectiveness of state controls such that the set of controls considered under section 112 should be limited in that fashion.”242 Therefore, the petition for review was granted. The National Mining Association and the American Petroleum Institute sought a writ of mandamus on November 13, 1995, to force EPA to vacate the potential to emit definition per this decision.243 The Court of Appeals for the D.C. Circuit declined, stating that “[s]ince the opinion and judgment did not vacate EPA’s rule, the motion actually seeks a modification of the judgment and, as such, is not timely.”244

D.  MACTs: Technology Based Standards

For each category of sources, EPA must establish the MACT.245 It is applicable to both new and existing sources.246 The standards must [*PG257]consider cost, non-air quality impacts on the environment and human health, and energy requirements.247 However, section 112 defines a minimum level of control or “floor.”248 Costs and other impacts are only used to evaluate options more stringent than the floor defined by the statute.249 This is based on section 112(d)(4) which states: “[w]ith respect to pollutants for which a health threshold has been established, the Administrator may consider such threshold level, with an ample margin of safety, when establishing emission standards under this subsection.”250

For new sources, MACT must be at least as stringent as the average emissions achieved by the best controlled sources in the same category.251 For existing sources, MACT may not be less stringent than the average emission limitation of the best performing 12% of existing units.252 Where there are few sources, the average of the best performing five sources is to be used.253 Hazardous pollutants are to be controlled by the reduction in emissions through process changes, substitution of materials or other modifications, as well as through the use of traditional pollution control devices and work practices.254

EPA does not develop control requirements for each of the listed substances.255 Instead, EPA identifies industrial categories that emit air toxics. EPA was required to publish a list of industrial categories and subcategories by November 15, 1991 for major sources and area sources.256 All major sources in each designated category must be regulated.257 In addition, CAA section 112(c)(6) requires seven specific pollutants from sources accounting for a least 90% of the aggregate emissions for each pollutant to be listed by November 15, 1995, and to be subject to standards by November 15, 2000.258 They are alkaylated lead compounds, polycyclic organic matter, hex-chloro[*PG258]benzene, mercury, polychlorinated biphenyls, 2, 3, 7, 8-tetrachloro-dibenzo-p furans, and 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin.259

The statute provides a ten-year schedule for promulgating MACT standards for 174 source categories, with not less than forty categories to be regulated by November 15, 1990; coke oven batteries were to be regulated by December 31, 1992; 25% of categories to be regulated by November 15, 1994; an additional 25% to be regulated by November 15, 1997; and all categories to be regulated by November 15, 2000.260 EPA regulated all of the forty-seven source categories in the two- and four-year groups by 1997.261 After a standard is promulgated, a source that is subject to the standard has three years to comply, although a one-year extension is authorized.262 Thus, the first sources subject to the new law had to comply in late 1995 or 1996.263 If EPA does not act in a timely manner to implement a hazardous air pollution control program, then “hammer” provisions apply that require an emission limitation to be imposed on a case-by-case basis.264 The requirements are to be equivalent to the limitations that would apply to the source if emission standards had been promulgated in a timely manner.265

The basic approach in the new section 112 is to use an industrial category MACT-based program.266 However, the law does allow for more stringent requirements to be imposed to protect public health with an ample margin of safety.267 EPA is to establish standards for carcinogens that present a cancer risk greater than one in a million.268 Eight years after promulgation of MACT-based standards for a category of sources, EPA must assess the residual risk remaining after the application of MACT and, if necessary, revise the relevant standard on a health basis in accordance with the standard-setting criteria in effect before section 112 was amended.269 The National [*PG259]Academy of Sciences is responsible for evaluating the techniques relating to this risk assessment methodology.270

Area sources, which include all stationary sources of HAPs that are not major sources,271 that are responsible for 90% of the hazardous emissions of the thirty HAPs that present the greatest threat to public health in urban areas must be regulated by November 15, 2000.272 These sources may be regulated by requiring generally available control technology or management practices (GACT).273 The statute also provides for the control of HAPs from urban area sources in section 112(k)(3).

As of April 28, 2000, the final MACT standard schedules are represented in Appendix 1.274 In promulgating standards for all forty-seven source categories in the two-Year and four-Year groups, EPA estimates a reduction in air toxics of close to 1 million tpy and a reduction in criteria pollutants of approximately 1.8 million tpy at an annualized cost of approximately $672 million.275

As of June 5, 2000, there were six proposed MACT standards, represented in Appendix 2.276 As of June 6, 2000, twenty-six MACT standards were expected to be finalized in 2001 and another twenty-six finalized in 2002.277 EPA expects that by 2005, the MACT standards will reduce toxic air emissions by 1.5 million tpy.278

If EPA misses the deadline for promulgating the MACT standards, sources are still required to obtain an “equivalent emission limitation” by permit within eighteen months of the statutory deadline.279 May 15, 1999, was the statutory deadline for [*PG260]promulgation of the seven-year MACT standards.280 That deadline was extended to December 15, 1999.281 Therefore, if the applicable MACT standard is not finalized by June 15, 2001, sources must then apply for an “equivalent emission limitation” per CAA section 112(j).282 While EPA has often missed the statutory deadline for rules, it has “virtually always” issued the standards within the following eighteen months.283

E.  General HAP Regulations

Parts 60 and 61 of title 40 of the C.F.R. contain national standards required by sections 111 and 112 of the CAA before it was amended in 1990.284 Part 61 contains the NESHAP requirements imposed by the pre-1990 CAA. Because of the savings provision of section 112, these parts continued to apply but with some modifications to comply with the 1990 CAA Amendments.285 To deal with the new section 112, general regulatory provisions, located in subpart A of part 63 of title 40 of the C.F.R., codify procedures and criteria used to implement emission standards for stationary sources that emit (or have the potential to emit) one or more of the 188 HAPs listed in the Act.286 The standards applicable to specific source categories also are codified in 40 C.F.R. part 63.

On March 16, 1994, EPA promulgated a final rule covering “General Provisions” applicable to HAPs.287 HAPs are to be established for stationary source categories that emit one or more of the 188 regulated HAPs.288 A list of sources emitting listed HAPs was published on July 16, 1992.289 Each source category is to be regulated by specific standards codified in 40 C.F.R. part 63, and by the General [*PG261]Provisions that apply to all regulated sources.290 If there is a conflict between the specific requirements and the General Provisions, the specific requirements apply.291 The General Provisions cover applicability determinations (including new versus existing and area versus major sources), compliance extensions, and requests to use alternative compliance measures, compliance dates, operation and maintenance requirements, methods for determining compliance, and procedures for testing, monitoring, reporting, and recordkeeping.292 The General Provisions do not apply to regulations developed pursuant to section 112(r), concerning accidental releases, unless specified in the section 112(r) regulations.293

Different requirements may be established for major and area sources of the same source category.294 The determination of whether a facility is a major source is based on the facility’s “potential to emit” HAPs “considering controls.”295 For a physical or operational limitation on HAP emissions to limit a facility’s “potential to emit,” it must be federally enforceable.296 Thus, limits on HAP emissions, including the use of air pollution control devices, should be incorporated into an applicable permit or into the SIP to be a legal limitation.297 The major source versus area source determination is made by considering all HAP emissions from sources within a contiguous area that are under common control.298 As previously discussed, EPA has interpreted section 112 to apply to entire contiguous adjacent sites without being subdivided according to industrial SIC codes; thus, the definition for “major source” in part 63 may not be the same as the definition used in other CAA [*PG262]regulations.299 Major sources and area sources are subject to section 112 if they are an “affected source.”300 EPA has defined affected source in part 63 differently from the definition used in subchapter IV of the CAA and the related regulations.301 Under the General Provisions, “affected source” refers to a collection of process, equipment, or groups of equipment defined in standards under part 63 (including case-by-case MACT standards or equivalent emission limitations).302

Until EPA promulgates part 63 requirements for a source, section 112(g) addresses the modification, construction, and reconstruction of major sources after the effective date of the operating permit program.303 Section 112(j) provides for states to establish emission limits in operating permits if EPA fails to promulgate standards for a category of sources on a schedule set out in section 112(e).304 Under these provisions, states may be required to make case-by-case MACT determinations.305 The issue of the relationship of the General Provisions to sections 112(g) and (j) was left to future rulemaking.306 Once an operating permit program is established in a state, the “hammer” provisions of section 112(j) apply.307 If EPA fails to promulgate a standard for a source category as required by section 112(e)(1) and (3), then the permit shall contain emission limitations, on a case-by-case basis, that are “equivalent to the limitation that would apply to such source if an emission standard had been promulgated in a timely manner . . . .”308

The General Provisions are intended to implement the preconstruction review requirements of section 112(i)(1), but not the review requirements of section 112(g).309 However, EPA generally agrees that compliance with an applicable MACT standard based on section 112(d) or (h) would constitute compliance with (g).310 A case-by-case MACT determination under section 112(j) is only necessary [*PG263]when no applicable emission limitation has been established by EPA.311 The rules governing the case-by-case process are found at 40 C.F.R. section 63.43.312 On May 10, 1996, EPA issued a direct final rule governing the establishment of equivalent emission limitations pursuant to section 112(j).313

F.  New Construction, Modification, and Reconstruction

CAA section 112 recognizes that EPA could not immediately issue MACT standards for all industries and provides for emission standards to be promulgated for the initial list of sources as late as November 15, 2000.314 Historically, regulations concerning construction, reconstruction, and modification of sources subject to either NSPS or NESHAPs have been regulated at 40 C.F.R. parts 60 and 61, subpart A. CAA section 112(g)(2) prohibits any person from constructing or reconstructing a major source of HAPs unless they meet a MACT standard.315 If no applicable emission limitation exists then such determinations are made on a case-by-case basis.316 If emission standards are not feasible, then either a design, equipment, work practice, or operational standard, or combination of these approaches may be used.317 The operating permit required by subchapter V is to contain appropriate emission limitations for HAPs.318 EPA promulgated a proposed section 112(g) rule on April 1, 1994,319 and on March 20, 1996, EPA released a draft final rule.320 The final section [*PG264]112(g) rule was promulgated on December 27, 1996.321 It is narrower in scope than the 1994 proposed rule and requires MACT controls only for new facilities that are major sources for toxic air pollutants and for new or reconstructed major emitting production units at existing facilities.322 For sources for which national MACT standards have not been issued, states continue to impose MACT standards on a case-by-case basis.323 The Agency decided not to issue regulations at that time for modified sources because the section 112(g) program is primarily a transitional program designed to operate until all categories of major sources of HAPs are subject to MACT standards issued under section 112(d).324 Such sources would be subject to existing state air toxics programs, if applicable.325

The effective date of the program under section 112(g)(2)(B) in any state or local jurisdiction was the date on which a permitting authority places its implementing program into effect or eighteen months after December 26, 1996, whichever is earlier.326 Implementing programs were to be in effect by June 29, 1998.327 If at that time there was no working implementation program, either the permitting authority could issue a MACT determination with EPA’s concurrence or EPA regional administrator would issue a 112(g) determination for up to one year.328 On June 30, 1999, EPA extended the time period allowed for the regional administrator to render case-by-case MACT determinations to thirty months because some permitting authorities did not have implementing programs by June 29, 1999, nor the authority to issue MACT determinations.329

The program excludes steam generating units from coverage.330 Since only new and reconstructed major sources will be subject to section 112(g), other sources may avoid section 112(g) requirements by using design or emission controls that keep potential emissions [*PG265]below the ten tpy (or other threshold).331 Netting is not allowed.332 Alternatively, sources may avoid section 112(g) by obtaining a preconstruction minor NSR permit from the state.333

Major affected sources, or sources that become major affected sources due to reconstruction, must undergo preconstruction review.334 Affected sources that are nonmajor or unaffected nonmajor sources that reconstruct must only submit a notification.335 To construct a new major affected source or reconstruct a major source so that the source becomes a major affected source requires approval in advance from the Administrator.336 The details concerning the requirements of the application are found at 40 C.F.R. section 63.5(d).337 Reconstruction requirements also are based on the policy expressed in the December 16, 1975 Federal Register’s New Source Performance Standard requirements.338 After an affected source completes construction or reconstruction it must comply with the relevant emission standards.339 There also are requirements for startup, shutdown, and malfunction plans that can be used to avoid noncompliance penalties.340 Startup, shutdown, and malfunction reports are also required.341

[*PG266]G.  Operating Permits

The section 112 program is implemented through the operating permit program developed under subchapter V of the CAA.342 EPA’s regulations to control HAPs in 40 C.F.R. part 63 must coordinate the requirements with the operating permit program under subchapter V of the CAA.343 The operating permit program clarifies and makes a source’s air pollution requirements more enforceable by consolidating its CAA obligations in one document. On July 21, 1992, EPA promulgated regulations requiring states to develop permit programs for stationary sources including HAP sources.344 Thus the part 70 permit regulations of July 21, 1992,345 and the General Provisions applicable to all HAP sources, as well as part 63, form the basis for permit conditions.346

The definition of a “regulated air pollutant” under 40 C.F.R. section 70.2 for operating permit purposes includes any pollutant subject to a standard promulgated under section 112.347 An explanatory memo by Lydia Wegman in 1993 notes that “if a pollutant is regulated for one source category by a standard or other requirement, then the pollutant is considered a regulated air pollutant for all source categories.”348 The one exception to this rule is case-by-case MACT determinations based on section 112(g)(2).349

Sources must file periodic reports showing their compliance status.350 Regulations concerning a federally-implemented permit program, to be used in states that fail to obtain EPA’s approval of the state permit program, are found at 40 C.F.R. part 71. EPA believes it is appropriate for all sources regulated under part 63 to undergo the permitting process, but non-major sources may be subject to deferral of the subchapter V requirements.351 When a source is required to obtain an operating permit, the general provisions of 40 C.F.R. [*PG267]part 63 will be implemented through the permit program.352 When HAPs also are regulated under a SIP provision, as for example, VOC emissions, additional coordination is needed.353

On January 19, 1996, a memorandum by John S. Seitz, director of EPA’s Office of Air Quality, Planning, and Standards, was released concerning contingency plans for sources of HAPs.354 Sources of HAPs must prepare and implement startup, shutdown, and malfunction plans under 40 C.F.R. section 63.6(e)(3)(1).355 These contingency plans do not have to be included in the operating permit. Sources must state, however, that they are subject to the requirement to maintain startup, shutdown, and malfunction plans.356 The permitting authorities may require a source to present a copy of its plan for review and the plan must be kept at the source’s location.357 It is not necessary, however, for the plan to be included in the permit.358

H.  Monitoring and Performance Testing

The General Provisions include requirements applicable to all affected HAP sources, while subparts of part 63 have additional requirements applicable to specific source categories.359 Major sources also are subject to the enhanced monitoring program as proposed on October 22, 1993.360 These requirements will be incorporated into the rules being promulgated under part 63.361 This is to include Continuous Emission Monitoring Systems (CEMS)362 when required.363

[*PG268] The regulations also contain both general performance364 testing requirements as well as testing required under the individual categories developed under part 63.365 Each affected source must prepare a site-specific test plan. EPA has created a guideline document, Prepar-tion and Review of Site-Specific Test Plans, to assist in the preparation of test plans.366

The owner or operator of an affected source is required to maintain all records required by the General Provisions for at least five years following the date of occurrence, measurement, or maintenance.367 If an owner or operator believes the source is not subject to a relevant standard under part 63, a record must be kept of this applicability determination.368

In May 2000, EPA issued a proposed rule on imposing new reporting requirements for HAPs.369 Each major source must obtain an operating permit which necessarily requires a HAP inventory.370 In addition, the Urban Toxics Air Program mandates reductions by accounting for all emission control measures, and a HAPs inventory will be crucial to the development of that program.371 For HAPs reporting, EPA estimated the consolidated reporting rule will cost each state seven hundred hours annually.372 Industry will be affected by an estimated three hours annually of work and the rule will have an industry-wide cost of $844,000.373

However, monitoring and measurement requirements for HAPs are still to be resolved.374 “Of 188 HAPs, 134 have applicable [measurement] methods. [Forty-three] have likely methods. [Eleven] have potential or no methods. [Thirty-one] of the 33 high-priority urban air toxics have applicable methods.”375

[*PG269]I.  Toxic Risk Assessment

The 1990 CAA Amendments added several provisions designed to encourage the use of risk assessment to control air pollutants. Under section 112(o), the National Academy of Sciences (NAS) was to review the risk assessment methodology used by EPA to determine carcinogenic risk associated with HAPs.376 The NAS was to recommend improvements in methodology including methods for assessing the adverse health effects of risks other than cancer.377 A report was to be submitted to the Risk Assessment and Management Commission and to congressional committees by May 15, 1993.378 Section 303 of the 1990 CAA Amendments established a Risk Assessment and Management Commission to investigate the policy implications and appropriate use of risk assessment and risk management under various Federal laws.379 The Commission was to be composed of ten members.380 The President appointed three members, the majority and minority leadership of Congress appointed six members, and the president of the NAS appointed one member.381

Under section 112(f), the Administrator of EPA was to report to Congress by November 15, 1996 on the methods of calculating the health risks remaining from sources subject to MACT regulation under section 112, the significance of the remaining risk, and recommendations regarding such risk.382 Under section 112(g), EPA must rank the hazardous risk of the regulated air pollutants if offsets by equally or more HAPs are to be allowed.383

The National Research Council fulfilled the NAS mandate in 1994 with the publication of Science and Judgment in Risk Assessment.384 The Congressional Commission on Risk Assessment and Risk Management began meeting in 1994, and in 1997 released its report, Framework for Environmental Health Risk Management.385 This report [*PG270]“introduces a unique Risk Management Framework to guide investments of valuable public-sector and private-sector resources in researching, assessing, characterizing, and reducing risk.”386 Volume One of the report discusses the Commission’s comprehensive Risk Management Framework.387 Volume Two is a large comprehensive risk management analysis that addresses many technical and policy issues related to health and environmental risk-based decisions. It includes recommendations for the management of residual risks that are to be regulated under the CAA section 112(f).388

In 1998, EPA issued Guidelines for Ecological Risk Assessment.389 The guidelines provide a three-phase approach to risk assessment390 and is the “basis of the residual risk approach to ecological risk assessment.”391 For human health risk assessments, EPA will rely heavily on their Integrated Risk Information System (IRIS), which is an electronic database containing information on human health effects from chemical exposure.392 Risk assessment guidelines for mutagenicity, carcinogenicity, chemical mixtures, developmental toxicity, exposure assessment, risk characterization, reproductive toxicity, probabilistic analysis, and neurotoxicity have been issued by EPA.393 The “EPA plans to establish data source hierarchies for each type of toxicity information to be used in residual risk assessments . . . .”394

EPA will model risk assessment of HAPs using the approach found in the 1989 benzene NESHAP.395 This is a two-tiered approach [*PG271]following the 1987 NRDC v. EPA case decided en banc by the Court of Appeals for the D.C. Circuit prior to the 1990 Amendments that discussed what is “safe” under CAA section 112.396 This approach was endorsed by Congress in the 1990 Amendments as illustrated by the Conference Report.

In the first step of this analysis, the Administrator must determine a safe and acceptable level of risk considering only health factors. In the second step, the Administrator may consider cost, feasibility and other relevant factors in addition to health in order to set a standard to provide an “ample margin of safety.” This approach is required under the decision in . . . NRDC v. EPA . . . and is set forth in the rulemaking on emissions standards for benzene . . . .397

EPA, therefore, “strives to provide maximum feasible protection against risks to health from HAPs”398 by limiting the maximum individual risk to 1 in 10,000 and the individual lifetime risk to 1 in 1 million.399 Despite IRIS and other data sources, EPA is not prepared to conduct full residual risk analysis due to a paucity of data on human health, ecological, and exposure data.400

On June 26, 1996, EPA issued a proposed chemical test rule under the Toxic Substances Control Act (TSCA) to assist in implementing CAA section 112.401 The proposed rule was to be the first in a series of rules used to generate health effects data to support [*PG272]emissions standards for twenty-one HAPs.402 EPA, however, repeatedly extended the comment period for the proposed chemical test rule.403 On April 21, 1998, the agency promulgated a notice of another extension of the comment period.404 The agency expects to issue a final rule in January 2001.405

J.  The Early Reduction Program

The CAA Amendments create problems for those companies that reduce emissions voluntarily.406 Voluntary reductions may not count toward mandatory reductions required in the future by the CAA.407 The CAA section 112(i)(5) provides for EPA (or a state) to issue a permit under subchapter V that allows an existing source that reduces hazardous air pollution emissions by 90% to avoid the emissions reductions required by section 112(d) for six years after the compliance date that would otherwise be applicable if the 90% reduction is achieved before an applicable section 112(d) standard is proposed.408 However, states may require reductions in excess of those specified in section 112(i)(5).409

The CAA’s Early Reduction Program requires HAPs to be reduced by 90% to postpone for six years the deadline for MACT compliance.410 If a source emits high risk pollutants as specified in the regulations,411 the non-high risk pollutants can be used to offset only a fraction of the amount of required reduction of a high risk pollutant.412 Final regulations to implement section 112(i)(5) were originally promulgated on December 29, 1992413 and have been [*PG273]subject to numerous changes. They are codified at 40 C.F.R. part 63, subpart D.

To determine what pollutants are high risk EPA used three criteria: chlorinated dioxins and furans; all listed HAPs that are known human carcinogens; and listed pollutants that are toxic at or below threshold ambient concentrations.414 The toxicity is based on an estimated maximum exposure to a pollutant that can be tolerated by a human exposed continuously for seventy years without having any adverse health effects. This is called a reference concentration (RfC) and is extrapolated from animal studies. High risk HAPs are generally those with an RfC of 0.05 ug/m3, based on a two-year rat study, that are included in EPA’s Integrated Risk Information System.415 EPA determines human exposure by assuming a release of ten tpy of HAPs. Using their air dispersion model, this release will produce an ambient concentration of 5.02 ug/m3. All HAPs with an RfC that is one-tenth or more of this assumed concentration (>.502 ug/m3) are deemed high-risk HAPs.

This regulation was challenged successfully for methylene diphenyl diisocyanate (MDI). In an opinion by Judge Ginsburg, the U.S. Court of Appeals for the D.C. Circuit held that designating MDI as a high-risk pollutant based on a generic air dispersion model that bore no relationship to the properties of the chemical and that was based on an unwarranted assumption that MDI would be gaseous at temperatures at which it is a solid was an arbitrary and capricious action.416

Less than 10% of the 8000 to 13,000 major sources subject to MACT standards agreed to participate in the Early Reductions Program. Only forty applications for the six-year extensions had been filed by late 1994. Industry declined to participate because of the costs and difficulties in developing the needed historical base-year emissions data.417 There also was uncertainty concerning how state standards would relate to federal MACT standards, which could [*PG274]require industries that add controls to add more or different controls, or both, at a later date. Finally, the six-year extension offered little benefit if EPA’s regulations were delayed or if the standards provided adequate time to comply.418 Nevertheless, EPA continued the program, but shifted its implementation to its regional offices.419 In 1997 there were about twenty-five early reduction permits pending and about six permits had been issued.420 With the passage of time, this program has become largely irrelevant.

K.  The National Urban Air Toxics Program

Section 112(c)(3) requires sources representing 90% of the area sources with emissions of the thirty hazardous pollutants presenting the greatest risk to public health to be regulated by November 15, 2000. Area sources also may be subject to alternative standards pursuant to section 112(d)(5).421 Mobile sources of hazardous emissions are to be regulated pursuant to section 202(l).422 Health-based standards promulgated under section 112 prior to November 15, 1990 remain in force until modified.423 Within eight years of promulgation of a standard for major or area sources the Administrator may establish additional requirements pursuant to the “residual risk” provisions in section 112(f) to protect the public health with an ample margin of safety.424 It is EPA’s expressed intention to deal with thirty-three HAPs, including thirty HAPs that are emitted from area sources, by developing an integrated program dealing with its responsibilities under sections 112(c)(3), (k), and 202(l).425 This program also will deal with a substantial portion of the HAPs being considered for regulation under section 112(d).426

Section 112(k)(3) tasks EPA with identifying not less than thirty HAPs from urban area sources, identifying the sources that represent 90% of the emissions of these pollutants and reducing the incidence [*PG275]of cancer attributable to emissions from these sources by 75%.427 Urban air is of particular concern because of the higher concentration of population and pollution in a close geographic proximity and is feasible in part because many urban areas share the same toxics profile.428

EPA promulgated a draft urban air toxics strategy on September 14, 1998, that introduced an integrated strategy to deal with HAPs.429 On July 19, 1999 EPA promulgated its Integrated Urban Air Toxics Strategy (Strategy).430 There are three risk reduction goals within the Strategy:

1. ensure a 75% reduction in cancer incidence from HAPs;431

2. substantially decrease non-cancer health risks from area sources in urban areas;432 and

3. target and address disproportionate risk in urban areas from all sources.433

The Strategy consists of four basic components:

1. regulatory tools and programming activities for source-specific and sector-based standard-setting on federal, state, and local levels;434

2. local and community efforts focusing on cumulative risks within urban areas;435

3. modeling and monitoring for urban areas under the National Air Toxics Assessments program;436 and

4. communication and education of the public.437

Thirty-three HAPs are identified in the Strategy.438 These HAPs were selected based on 1990 baseline data, and emissions of some of [*PG276]the selected HAPs have been dramatically decreased since that time due to technology-based standards.439 It is therefore imperative to develop a monitoring system and acquire comprehensive data before the implementation of any regulatory structure.440

While CAA section 112(c)(3) requires the listing of area sources representing 90% of the emissions of the thirty hazardous pollutants presenting the greatest risk to public health, the current list does not.

The current list of area source categories doesn’t include categories representing 90[%] of the emissions of each of the 30 area source HAPs. The current list meets the 90[%] or greater requirement for 11 of the 30 area source HAPs. For 10 other HAPs, the list accounts for at least 80[%] of the emissions, and for ethylene dichloride the list accounts for approximately 78[%] of the emissions. . . . The remaining HAPs on the list represent less than 75[%] of the emissions . . . . 441

It is important to note that the Strategy does not provide a regulatory regime, but seeks to integrate and expand current regulatory schemes to deal with the air toxics in urban areas after assessing the cumulative risks of HAPs exposure from various sources.442 It is a strategy, not a rule.443 EPA expects to pursue a three-tiered approach to implement the Strategy.444 The first tier will consist of MACT standards, the second tier of source category specific GACT standards, and the third tier will be a flexible GACT process.445

In meeting the Strategy’s goals, [EPA will] consider reductions in HAPs resulting, not only from actions under [EPAs] overall air toxics program . . . and measures resulting from programs to attain the national ambient air quality standards for particulate matter and ozone . . . , but also [*PG277]from State, local and Tribal measures. Further, [EPA will] consider cumulative risks presented by exposures to emissions of HAPs from sources in the aggregate.446

L.  State Programs

The resounding lack of success of regulation of air toxics prior to the 1990 CAA Amendments led many state and local governments to create their own programs to deal with the problem.447 The programs vary, but they have focused on addressing air toxics through ambient air levels, control technology standards, and risk assessment.448 In recognition of these state and local (S/L) programs, Congress created section 112(l) of the CAA to allow for the state and local programs to be implemented rather than other applicable section 112 standards.449 The difference between the “State/local residual risk assessment approach and the strategy set forth in sections 112(d) and 112(f) of the CAA is one of timing. While the CAA envisions control of HAPs from major sources as a two-step process . . . many State and local agencies consider these simultaneously.”450 In a 1995 survey, 60% of state and local air toxic programs were risk-based, and half of those addressed both new and existing sources.451

Each state may develop and submit to the Administrator for approval a program to implement and enforce the emission standards and other requirements for air pollutants that are subject to CAA section 112 or to implement the accidental release provisions of section 112(r).452 A guidance document was required to be published by the Administrator by November 15, 1991 to explain how the states should develop programs for submittal.453 After a program is submitted by a state, the Administrator has 180 days to approve or disapprove the program based on criteria in section 112(l)(5).454 If a proposed program is rejected then a state may revise and resubmit it. If a state with an approved program does not administer or enforce it [*PG278]in accordance with EPA’s published guidance then EPA can withdraw approval of the program.455 In states with delegation authority, EPA can still enforce applicable emission standards or requirements.456

On November 26, 1993, EPA promulgated regulations to provide guidance to states seeking EPA’s approval of state programs in lieu of federally promulgated HAP standards under section 112.457 This final rule contained guidance concerning rules or programs that can be implemented or enforced by states in place of certain section 112 rules.458 States may obtain partial or complete delegation; such delegation results in state programs that are substitutes for applicable federal requirements within the state, but these programs are federally enforceable.459 The November 1993 rule was subsequently amended to clarify the rule, reduce administrative burdens, and provide more flexibility to the states.460

The federal regulations governing EPA’s approval of state rules or programs under section 112(l) are located at 40 C.F.R. section 63.90. Section 112(l) and the related regulations allow state and local governments to receive EPA delegation in three ways: (1) states may substitute a state rule that is no less stringent for an EPA approved industry-specific rule; (2) the state may substitute an approved state air toxics program that is no less stringent than the federal program; or (3) EPA may delegate to a state the authority to implement and enforce the federal air toxic standards.461 All delegations are subject to EPA’s review and it may withdraw delegation if there are state infractions. Regulations to implement this program were promulgated on November 26, 1993.462 Under the implementing regulations, EPA must review state air toxic rules to ensure they are as stringent as the federal requirements.463 On July 5, 1995, EPA announced that this responsibility would be exercised by [*PG279]the regional offices.464 State programs can differ from the federal rules if they provide equivalent or better overall emission reductions. EPA detailed this position in a memorandum sent June 26, 1995, to EPA’s Region IX by John S. Seitz, director of OAQPS.465

This “rule substitution” option requires EPA to “make a detailed and thorough evaluation of the state’s submittal to ensure that it meets the stringency and other requirements” of 40 C.F.R.  63.93.466 A rule will be approved if EPA finds that: (1) the state authorities are “no less stringent” than the corresponding federal MACT; (2) adequate authorities and resources exist; (3) the schedule for implementation and compliance is sufficiently expeditious; and (4) the state program is otherwise in compliance with federal guidance.467 Upon approval, the state is given the authority to implement and enforce its rule in lieu of the MACT.468

A memorandum by John S. Seitz on July 10, 1998, clarifies what discretionary authorities are delegated to state and local entities when they receive “straight” delegation to implement the General Provisions.469 The memorandum addresses source-specific decisions only, rather than category-wide decisions.470 General Provisions that may not be delegated generally include alternatives to opacity standards, test methods, monitoring, and record-keeping.471

EPA issued proposed regulations on January 19, 1999, to amend the approval process of state and local programs.This rule was finalized September 14, 2000.472 The purpose of the rule is to increase flexibility in demonstrating equivalency and offer additional alternative processes for delegation. EPA maintains that the equivalency criteria will remain the “same no matter which delegation/approval option a S/L chooses to pursue among the [*PG280]options that allow alternative requirements to be substituted for Federal requirements.”473

IV.  HAP Emission Standards for Categories of Sources

The General Provisions apply to all regulated sources. But in addition, each HAP source category must have a NESHAP established. If a conflict exists between the General Provisions and the specific source category requirements, the source category requirements apply.

Pursuant to CAA section 112(c), EPA developed an initial list of 166 categories of major sources and eight categories of area sources for a total of 174 source categories which was published on July 16, 1992.474 In addition, section 112(e)(5) requires EPA to promulgate emissions standards pursuant to section 112(d) for Publicly Owned Treatment Works (POTWs) by November 15, 1995.475

The timetable for standards, found in CAA section 112(e), is organized so that the 174 source categories are to have regulations promulgated in four groups.476 Section 112(e)(1) requires EPA to have promulgated regulations for forty source categories by November 15, 1992. Coke oven batteries are separately covered in section 112(d)(8) with a requirement to promulgate regulations by December 31, 1992.477 By November 15, 1994, 25% of all initially listed categories were to be regulated; 50% were to be regulated by November 15, 1997; and the remaining categories were to be regulated by November 15, 2000.478 Forty-seven source categories had [*PG281]standards by 1996.479 Sixty-five industry group source categories had final rules published by November 1999.480 A revised schedule for MACT promulgations was published in November 1999 that projected the promulgation of another ninety-two rules by the statutorily imposed November 15, 2000 deadline.481 As discussed previously, this projection has not been met.482

Sources within the listed categories are subject to MACT standards developed under section 112(d) when promulgated.483 Until standards are promulgated, major sources are subject to limitations determined on a case-by-case basis.484 Section 112(j) requires the owner or operator of any major source, in a category for which emission standards are delayed by at least eighteen months from the scheduled date for the promulgation of standards, to submit a permit application in compliance with CAA subchapter V. A proposed rule establishing requirements and procedures for complying with section 112(j) was promulgated on July 13, 1993.485 On May 20, 1994, EPA promulgated the final rule.486 The rule also contains provisions governing the establishment of MACT—equivalent emission limitations by the permitting authority.487 In addition, EPA promulgated regulations under CAA section 129 to control municipal waste combustors and hospital/medical/infectious waste incinerators.488

In the material that follows, two specific hazardous air pollution problems are briefly discussed. Asbestos is discussed because it represents the pre-1990, chemical-by-chemical approach, as well as [*PG282]being a pervasive environmental problem that is subject to regulatory programs based on numerous statutes administered by various federal and state agencies. The Hazardous Organic NESHAP rule is discussed because it is the most complex of the MACT standards and applies to industries comprising a significant portion of the industrial community.

A.  Asbestos

Asbestos is a group of mineral fibers489 commonly used in past years in building products because it possesses qualities of flexibility, strength, and durability and is resistant to heat and corrosion.490 Asbestos can be found in over three thousand products.491 Many commercial buildings, older homes, and schools contain asbestos products such as roofing and flooring materials,492 textiles, papers, filters and gaskets, cement, pipes, coating materials, thermal and acoustic insulation,493 and textured paints.494 Older school buildings are most likely to contain asbestos in spray-applied fireproofing, pipe and boiler insulation, acoustical and decorative insulation, and floor and ceiling tile.495 EPA estimates that there are approximately 107,000 schools and 733,000 public and commercial buildings containing [*PG283]asbestos.496 Certain building types such as those listed above are presumed to contain asbestos if constructed before 1980.497

“Unlike most minerals, which turn into dust particles when crushed, asbestos breaks up into fine fibers that are too small to be seen by the human eye. Often individual fibers are mixed with a material that binds them together, producing asbestos containing material (ACM).”498 Asbestos exposure can occur through absorption through the skin499 or through inhalation500 or ingestion501 and can be transported throughout the body by blood and by the gastrointestinal tract.502 Based on human epidemiological data, EPA listed asbestos as a Group A (known) human carcinogen.503 Asbestos exposure has been closely linked with asbestosis, lung cancer, and mesothelioma.504 Asbestos fibers that are ingested are associated with stomach or gastrointestinal cancer.505 The majority of people afflicted with these diseases developed them as a result of occupational exposure to asbestos; however, these diseases also have resulted from exposure to asbestos brought home from the workplace in clothing and equipment.506

[*PG284]1.  Control of Asbestos

Asbestos in existing construction does not create a public health problem if it remains fixed in the materials;507 people must come in contact with the fibers to be affected.508 Nonfriable asbestos-containing materials, for example floor tiles, will not normally release fibers and thus are considered less hazardous.509 Friable asbestos products used in building materials are most likely to release fibers.510 These products are easily reduced to powder, and as a result are most susceptible to disturbance or damage.511 Solid materials containing asbestos are more likely to release fibers if they are subjected to vibration or to grinding, cutting, or sanding.512 Once asbestos fibers are released, they may remain airborne for many hours.513 As a result, the activities of a building’s owners and occupants play a significant role in determining the concentration of asbestos fibers.514

If a building has asbestos-containing materials, the potential legal liability makes it wise to consult a professional to determine whether the asbestos is aged or damaged and whether it should be removed.515 Friable asbestos products should immediately be repaired or removed [*PG285]to prevent a release.516 Asbestos-containing materials in good condition should not be cut or otherwise disturbed.517 If removal is appropriate it should be done by trained and properly equipped professionals.518

The presence of asbestos in schools has received considerable attention from Congress and federal agencies. EPA first regulated asbestos in schools in 1982 through regulations issued under Toxic Substances Control Act (TSCA) section 6(a).519 In 1986 Congress enacted TSCA amendments, known as the Asbestos Hazard Emergency Response Act (AHERA), which mandated the steps schools must take to protect students and school employees.520 Under these amendments, schools must: (1) inspect for both friable and nonfriable asbestos-containing materials; (2) prepare and submit a management plan to the governor of the state in which the school is located and make the plan available to parents of students and to school employees; and (3) determine and conduct appropriate actions to minimize the risk of exposure.521

EPA issued regulations under AHERA on October 30, 1987.522 EPA also promulgated regulations in 1986 and 1987 to protect asbestos workers involved in state or local government asbestos abatement projects that are not covered by either the OSH Act, a state [*PG286]plan approved by OSHA, or a state asbestos regulation that is comparable to or even more stringent than EPA regulations.523

Asbestos also is regulated pursuant to section 112 of the CAA.524 Section 112 controls emissions of HAPs through the implementation of National Emission Standards for Hazardous Air Pollutants (NESHAPs).525 Asbestos was one of the few substances regulated under the pre-1990 CAA section 112.526 Regulations issued after the 1990 CAA Amendments significantly increased the legal requirements applicable to asbestos abatement programs.527 For instance, asbestos is now measured by a percentage of area measurement using polarized light microscopy instead of by weight.528 The regulation also divided ACM into friable and nonfriable categories with new definitions.529 The requirements imposed more stringent demands on the demolition or renovation of asbestos containing buildings.530 The definition of “owner or operator” was expanded to include those controlling or supervising demolition or renovation.531 EPA is to be notified if regulated ACM exceeds 260 linear feet on pipes, or 160 square feet on other components, or thirty-five cubic feet on off-facility components.532 Many specific notification requirements and prohibitions on ACM-related activity were added.533 Detailed requirements for asbestos removal were added with the generally applicable requirement that asbestos be wet during renovation or demolition. Also, supervision and training requirements were tightened.534 Additional disposal requirements, similar to RCRA requirements, were added for regulated ACMs.535

[*PG287] On July 28, 1995, EPA clarified its asbestos air toxic standard.536 Residential buildings with four or fewer dwelling units are exempt from the asbestos rule, even if they are safety hazards or public nuisances under local law.537 Multiple small buildings located on the same site and under common ownership or control are not exempt if they are demolished or renovated.538 Residential structures that are demolished as part of a commercial or public project also are not exempt.539

Under federal law, any material containing more than 1% asbestos is considered to be a regulated “asbestos-containing material,” or ACM.540 EPA and OSHA have set permissible exposure levels in public buildings and for worker exposure and now require products containing asbestos to be labelled in order to reduce asbestos exposure.541 Federal regulations set forth work standards. For example, the use of safety equipment is mandated for employees working in buildings where friable asbestos is present prior to demolition or major remodeling.542

The asbestos NESHAP regulation was interpreted when the U.S. Court of Appeals for the Sixth Circuit decided United States v. Midwest Suspension & Brake on March 27, 1995.543 The case was a civil action brought against a brake shoe rehabilitation business for violation of the NESHAP for asbestos and an administrative order issued by EPA.544 Midwest supplied brakes and other parts for heavy duty trucks.545 Its brake operation included the collection and rehabilitation of used brake shoes for resale.546 An EPA inspection found emissions of asbestos, waste disposal that released asbestos, and asbestos in the shop floor dust.547 In response to these findings, EPA [*PG288]issued an administrative order requiring Midwest to comply with the regulatory “no visible emission requirement.”548 Yet, subsequent inspections of Midwest found that asbestos violations continued,549 leading the United States to bring a civil judicial action.550 The district court found for the government and ordered Midwest to pay a $50,000 civil penalty.551

Midwest appealed, claiming it was exempt under 40 C.F.R. section 61.149(a) because it was primarily an installer.552 The court, however, refused to allow this defense because it was first raised two years after the defendants amended their pleadings; thus, they failed to proceed with due diligence.553 Midwest then claimed it was not “fabricating” friction products containing commercial asbestos as required by 40 C.F.R. section 61.149(a) and, therefore, it was not “processing” asbestos.554 The court still upheld the district court’s finding, however, that Midwest’s “cutting” and “altering” brake shoes was a process that constituted “fabrication” within the meaning of the Act.555 Midwest next argued that dust emissions were insufficient proof of a violation because the inspector did not see asbestos particles with the naked eye.556 The asbestos NESHAP defines visible emissions as emissions detectable without the aid of instruments.557 The court again upheld the district court’s determination that visible emissions means visible dust containing asbestos fibers that are impossible to observe with the naked eye.558 The court then upheld the $50,000 civil penalty.559

EPA promulgated a ban and phase-out rule under TSCA560 on July 12, 1989, that would have banned about 94% of the asbestos used in the United States.561 The rule banned, at three staged intervals, the [*PG289]future manufacture, importation, processing, and distribution in commerce of close to 94% of the asbestos used in the United States and also imposed labeling requirements on products containing asbestos.562 On October 18, 1991, the U.S. Court of Appeals for the Fifth Circuit vacated and remanded most of the rule.563 The court held that EPA did not prove that the products subject to the ban posed an unreasonable risk, and the Agency did not investigate whether actions less burdensome would have adequately protected public health.564

On November 5, 1993, EPA lifted the ban on eight categories of asbestos containing products and continued the ban on six categories of products utilizing asbestos, including all new uses of asbestos.565 The six categories of asbestos-containing products that continue to be banned under TSCA are: corrugated paper, rollboard, commercial paper, specialty paper, flooring felt, and new uses of the substance (those not existing on July 12, 1989).566 EPA also announced that the restrictions under TSCA were lifted for eight categories of products: asbestos pipeline wrap, vinyl/asbestos tile, millboard, clothing, roofing felt, asbestos-cement flat sheets, corrugated sheets, and shingles.567 The November notice was not a rule-making but a fact-finding initiative.568 The agency published a technical amendment to the asbestos ban and phase-out rule to bring it in line with the court’s determination.569 On June 28, 1994, EPA banned asbestos-containing flooring felt and new uses of asbestos after August 27, 1990; after August 26, 1996, asbestos-containing commercial paper, corrugated [*PG290]paper rollboard, and specialty paper are banned from manufacture, production, importation, and distribution.570

2.  OSHA’s Requirements

OSHA has regulated asbestos exposure since 1971.571 Approximately 1.3 million workers in construction and general industry are exposed to asbestos, but initially OSHA’s asbestos exposure regulations only applied to general industry.572 The first asbestos permissible exposure limit (PEL) was 12.0 fibers per cubic centimeter (f/cc) and was based on the national consensus standard.573 On December 7, 1971, this level was reduced to 5 f/cc using OSHA’s emergency temporary standards (ETS) authority.574 It was not challenged and became a permanent standard in June, 1972, through normal notice and comment procedures.575 In 1975, OSHA attempted to reduce the PEL to 0.5 f/cc, but its approach was rejected by the U.S. Supreme Court.576 In 1976, OSHA reduced the standard to 2 f/cc.577 On November 4, 1983, OSHA lowered the PEL for asbestos to 0.5 f/cc using its ETS authority.578 In 1984, the U.S. Court of Appeals for the Fifth Circuit held that OSHA did not invoke its ETS powers properly and struck down the regulation.579

OSHA revised the permanent asbestos standard from 2 to 0.2 f/cc in 1986.580 OSHA’s standard for general industry occupational exposure to asbestos of 0.2 f/cc was extended to the construction industry on June 17, 1986.581 The standard was generally upheld in Building & Construction Trades Department v. Brock, but the decision resulted in nine issues being remanded to OSHA.582 OSHA removed [*PG291]some minerals from the coverage of the asbestos standards on June 8, 1992.583

OSHA promulgated a final rule concerning occupational exposure to asbestos on August 10, 1994.584 The final rule amends OSHA standards issued on June 17, 1986,585 for occupational exposure to asbestos in general industry and in the construction industry.586 A separate standard covers occupational exposure to asbestos in the shipyard industry.587 The effective date of these amendments was October 11, 1994.588 The standards specify various start-up dates.589 Major revisions to these standards include a reduced time-weighted average PEL of 0.1 f/cc for all asbestos work, and a new classification scheme for asbestos construction and shipyard industry work that ties mandatory work practices to work classification.590 There is now a presumptive asbestos identification requirement for building materials containing “high hazard” asbestos, limited notification requirements for employers using unlisted compliance methods in high-risk asbestos abatement work, and mandatory methods of control of asbestos during brake and clutch repair.591

The asbestos rules applicable to owners of buildings built before 1981 became effective on October 1, 1995.592 This regulation, nearly two hundred pages long, has been expanded by three sets of clarifications and corrections.593 The construction standard applies to almost any activity that disturbs material containing asbestos, or that is [*PG292]presumed to contain asbestos, in commercial buildings.594 The regulations require specific work practices to be followed that are designed to prevent the release to the air of asbestos fibers.595 Workers exposed to airborne asbestos levels of 0.l f/cc must be protected through the use of personal protection gear according to OSHA’s and EPA’s regulations.596

Most of the 1994 revisions to the asbestos standards were in response to an order of the U.S. Court of Appeals for the D.C. Circuit, which upheld the 1986 standards but remanded certain issues for reconsideration.597 OSHA previously made changes in response to the court order on December 14, 1989,598 and February 5, 1990.599 OSHA issued a notice correcting and clarifying certain of these provisions on June 29, 1995.600 OSHA further corrected and clarified the construction and shipyard employment standards on September 29, 1995, but it did not amend the general industry standards.601 The amendments became effective October 1, 1995.602 The Building and Construction Trades Department of the AFL-CIO challenged these job-related asbestos standards in the U.S. Court of Appeals for the D.C. Circuit.603 The American Petroleum Institute (API) filed a motion to intervene, arguing that a victory by the union could have a direct effect on companies that are members of the API.604 In late

[*PG293]1995, the D.C. Circuit transferred the case and two related cases to the Fifth Circuit.605 In 1996, the case was settled.606

Asbestos was initially listed as an area source subject to MACT standard formulations,607 but was delisted in 1995.608 One of the reasons for delisting was to prevent duplicative regulation, as the removal of asbestos is governed by 40 C.F.R. part 61, subpart M.609 Asbestos may be covered in other MACT standards if the facility qualifies as a major source.610

B.  The Hazardous Organic NESHAP Rule

On April 22, 1994,611 and June 6, 1994,612 EPA promulgated a NESHAP for the synthetic organic chemical manufacturing industry (SOCMI) and for several other processes subject to the equipment leaks portion of the rule in 40 C.F.R. part 63, subparts F, G, H, and I.613 This rule is commonly referred to as the Hazardous Organic NESHAP (HON or HON rule).614

The HON was challenged by the Chemical Manufacturers Association and Dow Chemical Company in June, 1994 in the U.S. Court of Appeals for the D.C. Circuit.615 The petitioners raised over [*PG294]seventy-five technical issues that were subsequently addressed in the amendments to the rule on December 5, 1996,616 and January 17, 1997, thereby ending the case.617

The HON regulates emissions from five kinds of emission points at SOCMI sources: (1) process vents, (2) transfer operations, (3) storage vessels, (4) air emissions from wastewater streams, wastewater collection, and treatment operations, and (5) equipment leaks.618

A SOCMI facility is subject to the HON rule if it meets three tests.619 First, it must be a facility that is major by having the potential to emit either ten tons of any of the 188 HAPs or twenty-five tons of any combination of HAPs.620 A facility includes all the emission points on a contiguous or adjacent property under common ownership or control.621 Second, the chemical manufacturing process unit (CMPU) must either manufacture or use one of the chemicals listed in subpart F of HON rule table one.622 Third, the CMPU must use as a reactant, or manufacture as a product, byproduct, or coproduct, one or more of the 112 HAPs listed in subpart F of HON rule table two.623 The HON rule identifies 385 facilities that involve an organic HAP either as a product, byproduct, coproduct, intermediate, or reactant.624 Further details are provided in the rule concerning the circumstances in which the HON rule is applicable.625 If a facility fails to meet any of the three tests it is not subject to the HON rule.626

[*PG295] The HON rule is divided into three subparts.627 Subpart F has general provisions; subpart G provides emission requirements for process vents, storage vessels, transfer operations, and air emissions from wastewater operations; and subpart H deals with emissions due to equipment leaks and relief-valve discharges.628

Forty C.F.R. section 63.100 contains additional details for determining applicability in situations where a process makes multiple products.629 If a chemical manufacturing process is subject to the HON, then the emission points associated with that process are regulated.630 Details on how to determine which storage vessels and transfer racks are part of a chemical manufacturing process are also contained in section 63.100.631

Definitions of terms used in subpart F are contained in 40 C.F.R. section 63.101.632 Sections 63.102 and 63.103 contain general compliance, recordkeeping, and reporting provisions and override certain portions of the NESHAP General Provisions (40 C.F.R. part 63, subpart A).633 These sections specify general performance test conditions, require records to be maintained for five years, and clarify where reports required under subparts G and H are to be sent.634

Subpart G contains the standard for process vents, transfer operations, storage vessels, and wastewater.635 It includes emissions averaging provisions.636 The first section of subpart G (40 C.F.R. section 63.110) contains applicability provisions that clarify potential overlaps between process vents, storage, wastewater, and equipment leaks.637 Section 63.111 contains definitions.638

Process vents are not regulated under the HON rule unless they contain HAPs in a quantity that exceeds 0.005% by weight of total HAPs.639 Process vents must be further classified into Group 1 or [*PG296]Group 2 based on their flowrate, HAP concentration, and “total resource effectiveness index” (TREI).640 Wastewater streams are also subject to classification.641 A proposed rule was issued on January 20, 2000 to further clarify the applicability of the HON rule to process vents.642

Section 63.112 provides an equation for use in determining a site-specific allowable overall emission limit for each source.643 The “source” is the combination of all emission points subject to the HON at a plant site (contiguous area under common ownership or control).644 The standard requires sources to meet the allowable emission limit; this equation, however, is not used to determine compliance with the standard, and source owners or operators are not required to calculate their allowable emission limit.645 As provided in 40 C.F.R. section 63.112(c), the owner or operator must demonstrate compliance using one or both of two approaches: the point-by-point compliance approach or the emissions averaging approach.646

Under the point-by-point approach, the owner or operator would apply control to each “Group 1” emission point.647 A Group 1 emission point is a point which meets the control applicability criteria, and the owner or operator must reduce emissions to specified levels; whereas a “Group 2” emission point is one that does not meet the criteria and no emission reduction is required.648 These Group 1 and Group 2 emission points are defined in section 63.111.649 Owners or operators selecting the point-by-point compliance approach must comply with the process vent provisions in sections 63.113 through 63.118; the storage vessel provisions in sections 63.119 through 63.123; the transfer operation provisions in sections 63.126 through 63.130; and the wastewater provisions in sections 63.131 through [*PG297]63.147.650 These sections include applicability criteria, emission limits, equipment and work practice standards, testing, monitoring recordkeeping, and reporting provisions.651

Under the emissions averaging approach, an owner or operator may elect to control different groups of emission points within the source to different levels than specified in sections 63.113 through 63.147, as long as the overall emissions do not exceed the overall allowable emission level.652 An owner or operator can choose not to control a Group 1 emission point (or to control the emission point with a less effective control technique) if the owner or operator over controls another emission point within the source.653 Emission “debits” (in mg of HAP emissions) are generated for each Group 1 emission point that is uncontrolled or under-controlled.654 Emission “credits” (also in mg) are generated for over-controlled points.655 Credits can be generated if a Group 1 or Group 2 point is controlled by a distinct technology that EPA approves as having a greater efficiency than the level of control required for Group 1 points.656 Credits have to equal or exceed debits for a source to be in compliance.657 Section 63.150 contains detailed equations for calculating debits and credits.658

Subpart H contains the standard for equipment leaks.659 Equipment regulated includes pumps, compressors, agitators, pressure relief devices, sampling connection systems, open-ended valves or lines, valves, connectors, product accumulator vessels, and instrumentation systems in volatile HAP (VHAP) service.660 A piece of equipment is in VHAP service if it contains or contacts a fluid that is at least 5% VHAP by weight.661

The applicability of subpart H and definitions are contained in sections 63.160 and 63.161.662 Sections 63.162 through 63.179 contain [*PG298]the standards for the various kinds of equipment and alternative means of emission limitation.663 These include leak detection and repair provisions and other control requirements.664 Sections 63.180 through 63.182 contain test methods and procedures and reporting and recordkeeping provisions.665 Sections 63.183 and 63.184 contain lists of VHAP’s and chemical production processes subject to subpart H.666

An emission rate is established for each portion of a SOCMI source based on a “reference control technology” (RCT).667 RCTs have been established for process vents, storage vessels, transfer operations, and wastewater streams.668 For each source there is a specified control technology, and control efficiency of 95% or more is required.669 Emissions averaging can be applied to the various release points, but the equations that must be used are difficult to apply, and new and existing sources are treated differently.670 In general, when emissions averaging is used, the HON rule requires HAP emissions to be reduced 98% over a one-year averaging period.671 Averaging cannot be used, however, if the failure to control an emissions point presents too much localized risk to the public, workers, or the environment.672 Pollution prevention measures, if adopted, can receive emission control credits.673 Thus, controls are not limited to end-of-the-stack measures.674

The HON rule requires detailed records be maintained for all emission points subject to the rule.675 Recordkeeping requirements vary depending on the source and the compliance method selected, but records on operating parameters, emission rates, and other variables can be expected to be required.676 In addition to the recordkeeping requirements, five types of reports must usually be [*PG299]submitted to EPA under subpart G of the HON rule.677 First, an initial notification is required for existing sources and at the preconstruction stage for new sources.678 Second, an implementation plan concerning compliance with subpart G must be filed with the application for an operating permit.679 For existing sources that are under an emissions averaging plan, the plan had to be submitted by October 22, 1995.680 For existing sources that are not included in an averaging plan, the plan had to be submitted by April 22, 1996.681 New sources must submit the plan at the time of their initial notification.682 Third, the compliance status of a source must be reported 150 days after the source’s compliance date. It is to include emissions data and all information necessary to demonstrate compliance.683 Fourth, periodic reports are required semiannually, and quarterly reports are required for those using emissions averaging.684 These reports must include the data that is beyond acceptable ranges and the results of periodic inspections.685 Finally, other reports are required concerning startups, shutdowns, malfunctions, and repairs.686 Monitored variables that temporarily exceed legal limits (“excursions”) are allowed. Six excursions are allowed in the first semiannual reporting period.687 They are reduced by one per reporting period.688 After three years only one excursion per semiannual reporting period is allowed.689

Because most MACT sources subject to the HON rule also are subject to the CAA subchapter V operating permit program, they have to meet additional requirements that are imposed by the permitting process.690 Many operating permit requirements are found in the HON rule691, and others are found in the general provisions at 40 C.F.R. part 63.692 For most sources, compliance with the HON rule [*PG300]was to be achieved by April 22, 1997693, but a one-year delay to attain compliance was provided.694

Organic hazardous wastes that are not subject to air toxics or new source performance standards may be subject to air pollution controls under RCRA.695 On November 25, 1996, EPA published a second “subpart CC” rule.696 The rule requires control of air emissions from hazardous waste units, including all tanks, containers, surface impoundments, and miscellaneous “subpart X” units that: (1) receive hazardous waste with an average volatile organics content that is 500 parts per million by weight or more at the point of waste organization; (2) are subject to a RCRA permit, interim status, or less than ninety-day standards; and (3) are not covered by a subpart CC exemption.697 The container requirements extend applicability to all portable units such as drums, bags, totes, roll-offs, tank trucks, and rail cars.698 The regulation also changes the rules applicable to less than ninety-day generators under 40 C.F.R. parts 264 and 265, subparts AA and BB.699 The changes in the subpart AA regulations were primarily to make them consistent with the NESHAP rules under the CAA.700

EPA estimated that about 308 chemical manufacturing facilities are subject to the recordkeeping and reporting requirements imposed by the HON rule.701 The average time spent meeting the requirements by an existing source is 4760 hours per year.702 The [*PG301]chemical manufacturers spend an estimated 1.727 million hours and $98.46 million each year according to EPA.703

The synthetic organic chemical industry, the target of the HON rule, has been selected to be the subject of an EPA attempt to develop a consolidated air rule.704 The Consolidated Federal Air Rule was proposed on October 28, 1998.705

The proposed rule is intended to pull together applicable Federal SOCMI rules into one integrated set of rules in order to simplify, clarify, and improve implementation of the existing rules with which source owners or operators must comply. The consolidated rule is an optional compliance alternative for SOCMI sources; sources may simply continue to comply with existing applicable rules or choose to comply with the proposed consolidated rule. The effect of this consolidation will be to improve understandability, reduce burden, clarify requirements, and improve implementation and compliance.706

Final action was expected in June 2000.707

V.  Standards for Incineration

“Incineration is the controlled burning of substances in an enclosed area.”708 An incinerator’s major advantage is that it reduces solid waste 70 to 85% by weight and 85 to 95% by volume.709 Effective incineration requires complete combustion. Complete combustion rests on three critical factors known as the three “T”s of combustion: temperature, time, and turbulence. More specifically, the important factors are the:

[*PG302]1) combustion chamber temperature;

2) duration of burn at high temperature; and

3) degree of mixing of wastes and air.710

Incineration destroys pathogens and some toxic chemicals, but, as a trade-off, produces harmful air emissions.711 Compared with many of the alternatives, however, the risks from incineration appear modest.712

The primary result of incineration is that combustibles are changed to carbon dioxide and water vapor.713 If combustion is not complete, however, then compounds known as products of incomplete combustion (PICs) may be released.714 Another byproduct is ash, which may take the form of fly ash or bottom ash.715 The residual ash left at the bottom of the chamber (bottom ash) may be treated as hazardous waste under RCRA.716 Fly ash, however, is emitted as particulate matter unless it is captured by air pollution control devices.717 If captured, fly ash also may be a RCRA waste.718 While the toxicity of the ash depends upon the kinds of waste incinerated, fly ash is generally more toxic than bottom ash because the metals and dioxins “are attracted to and condense on the small fly ash particles.”719 The most controversial air pollutants are the seventy-five organic chemical compounds known as chlorinated dioxins and the 135 organic compounds known as chlorinated furans.720 Because dioxins and furans condense onto fly ash, they are removed by air [*PG303]pollution controls that remove particulate matter.721 Heavy metals are toxics of particular concern, with arsenic, beryllium, cadmium, and chromium being the most important.722

CAA section 129, added to the statute in 1990, requires EPA to establish NSPS under CAA section 111 for new solid waste combustion units and to establish emission guidelines under section 111(d) for existing units.723 Section 129 directs EPA to regulate four categories of solid waste incineration units: municipal waste combustors (MWCs),724 hospital/medical/infectious waste incinerators (HMIWIs),725 industrial and commercial waste incinerators (ICWIs),726 and other categories of solid waste incinerators (OSWIs).727 It does not regulate the incineration of hazardous waste.

The NSPS may require pollutants to be removed or destroyed “before, during, or after combustion,” and new units must meet site-specific requirements that, to the maximum extent practicable, minimize potential risks to public health or the environment.728 Section 129 also requires that “[t]he degree of reductions in emissions that is deemed achievable for new units in a category shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the [*PG304]Administrator.”729 Because this language establishes a threshold limit below which EPA may not set emissions limitations, this latter standard of minimum performance is known as the MACT floor.730 Although the MACT floor represents a statutory minimum, EPA is required by the CAA to evaluate standards more stringent than the MACT floor, and it may set performance levels to be adopted as MACT that are higher than the MACT floor. In making this determination, EPA also must consider the factors set forth in section 129(a)(2): costs, non-air quality health and environmental impacts, and energy requirements.731

If the incinerators emit any of the HAPs listed under section 112(b), they also must comply with those regulations promulgated for their source categories.

A.  Waste Incineration

Hazardous waste incinerators (HWIs) are designed to destroy combustible hazardous constituents.732 HWIs have been regulated since 1981 under RCRA.733 Hazardous waste burning cement kilns (CKs)and lightweight aggregate kilns (LWAKs) have been regulated since 1991, when EPA promulgated an updated RCRA rule governing emissions from the incineration of hazardous waste.734 The rule was challenged by numerous groups, and under a settlement agreement EPA agreed both to propose a rulemaking by November 1995 and to finalize the rule by December 1996.735 Pursuant to RCRA, EPA promulgated regulations governing HWIs.736

Under the CAA Amendments of 1990, an expanded section 112 resulted in regulations that included hazardous waste incinerators on [*PG305]the list of categories to be subject to hazardous air pollutant controls.737 In November 1994, 162 HWIs were operating in the United States.738 In 1995, 141 HWIs had final RCRA permits while the other twenty-one were in interim status.739 In 2000, there were only a handful of HWIs operating in interim status.740

Under existing law, hazardous wastes may be burned in HWIs, in boilers, or in industrial furnaces.741 Industrial furnaces include CKs and LWAKs.742 HWIs reduce the volume or toxicity of hazardous waste, but usually do not utilize the heat value of the waste or recover usable material to be recycled.743 HWIs can be placed on ships operating in the ocean,744 but EPA essentially has banned ocean incineration as a means of waste disposal in the United States.745

In 1990, hazardous waste combustors (HWCs) were included as a source category pursuant to CAA section 112.746 To meet the MACT requirements and satisfy the settlement agreement (albeit after the deadline), EPA issued a proposed rule on April 19, 1996,747 to cover the three main categories of hazardous waste burners—HWIs,748 [*PG306]CKs,749 and LWAKs750—collectively regulated as hazardous waste combustors (HWCs). HWCs burn approximately 80% of all hazardous waste combusted annually.751 In 1997, there were 149 hazardous waste facilities with 189 individual operating units, eighteen Portland cement plants operating thirty-eight hazardous waste burning kilns, and five LWAKs facilities with ten hazardous waste-fired kilns.752

EPA subsequently published five notices of data availability for review and comment.753 The final rule establishing the MACT standard was published on September 30, 1999.754 While satisfying the requirements under the CAA, the final rule also satisfied EPA’s obligation under RCRA “to ensure that hazardous waste combustion is conducted in a manner adequately protective of human health and the environment.”755 This derives from RCRA section 3005(c)(3), [*PG307]dubbed the “omnibus provision,” which requires that each permit for a facility “contain such terms and conditions as the Administrator (or the State) determines necessary to protect human health and the environment.”756 To that end, a risk analysis also was undertaken:

These MACT standards are technology-based; they are not risk-based. These facilities, however, are also covered by RCRA in [sections] 3004(a) and 3004(q), which require EPA to develop standards that are protective of human health and the environment. The risk analysis . . . was conducted to satisfy RCRA’s requirement in support of the MACT standard rulemaking for HWCs.757

MACT emission standards are established for: chlorinated dioxins and furans; mercury; semivolatile metals lead and cadmium; low volatility metals arsenic, beryllium, and chromium; and hydrochloric acid/chlorine gas.758 Other HAPs identified in the 112(b) list are regulated through the use of surrogates.759 A particulate matter standard is used to control five metals: antimony, cobalt, manganese, nickel, and selenium.760 Carbon monoxide, hydrocarbons, and organic HAPs are also subject to regulation.761

A HWC facility must have a RCRA permit for stack air emissions or be classified as “interim status” until it demonstrates MACT compliance.762 The compliance deadline is September 30, 2002.763 A one-year extension may be granted if system retrofits cannot be completed despite a good faith effort.764 “Continuous emissions monitoring systems and other continuous monitoring systems for the specified operating parameters must be fully operational by the compliance date.”765 A compliance test must be conducted no later than March 30, 2003.766 A “Notification of Compliance” must be [*PG308]placed in the operating record by the compliance date.767 The Notification must show:

(1) compliance with the emission standards during the performance test;

(2) the revised operating parameter limits calculated from the performance test; and

(3) conformance of the carbon monoxide and hydrocarbon continuous emissions monitoring systems and the other continuous monitoring systems with performance specifications.768

The RCRA stack air emission provisions in the permit remain viable until the permit is modified to delete those conditions.769 The MACT standards under the CAA are to be incorporated in the facility’s operating permit under CAA subchapter V.770 There are specific provisions in the regulation to ease the transition from the RCRA operating permit to the CAA operating permit.771 This includes a “fast-track process” to modify the RCRA permit as needed.772

A site-specific risk assessment (SSRA) is suggested as the primary mechanism “by which the permitting authority may develop the information necessary to make the determination regarding what, if any, additional permit conditions are needed for a particular hazardous waste combustor.”773 EPA issued a guidance document in 1994, updated in 1998, entitled Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities to aid in an SSRA.774 The SSRA [*PG309]is used to address the RCRA omnibus provision requirements.775 While the SSRA is site-specific, the residual risk analysis required under the section 112(f) of the CAA is to be determined on a source category basis.776 In addition, the SSRA is made during the permitting process and the residual risk analysis is made years after MACT compliance.777 Therefore, “nothing in the RCRA national risk evaluation for this rule should be taken as establishing a precedent for the nature or scope of any residual risk procedure under the CAA.”778 Different approaches, represented in Appendix 3, were used to establish the MACT floor standards for each regulated pollutant.779

EPA estimates that the “total social costs” of the HWC rule will be between $65 and $73 million.780 While the compliance costs will be higher on average for cement kilns than incinerators,781 “between one and two cement kilns and between seven and sixteen on-site incinerators will stop burning waste entirely . . . .”782 However, “many of the marginal facilities are likely to exit the market even in the absence of the combustion MACT.”783 This market activity will result in between 23,000 and 54,000 tons of waste being reallocated from combustion systems that shutdown.784 The combustion price is expected to increase an estimated $15 per ton for kilns and $12 per ton for incinerators, representing 6% and 2% increases, respectively.785 Thirty-eight square kilometers of water and between 115 and 147 square kilometers of land will experience decreases in risk.786 EPA also estimates that 70% of the annual dioxin and furan [*PG310]emissions will be eliminated and that mercury emissions will be cut by 55%.787

The MACT standards are expected to result in reduction of the following adverse health effects on an annual basis: approximately two premature deaths, six hospital admissions associated with respiratory ailments and heart conditions, 25 cases of chronic bronchitis, over 250,000 asthma attacks, and nearly 20,000 days of work loss or restricted activity. These human health benefits are valued at $30 million per year.788

Some aspects of the HWC rule dealing with closing down HWCs were held to be arbitrary and capricious and were vacated by the U.S. Court of Appeals for the D.C. Circuit on July 25, 2000.789

B.  Municipal Waste Incineration

The problems associated with managing municipal solid waste (MSW)790 in the United States are both environmental and economic. Where to put the ever-increasing garbage has become an important issue at all governmental levels.791 Municipal solid waste includes those wastes generated at residences and commercial establishments and contains a wide variety of waste products.792 EPA predicted waste production would increase from over 195 million tons in 1990 to 222 million tons in 2000.793 However, most statistics concerning solid waste seem to be crude guesses, and actual amounts may be much higher [*PG311]because EPA’s numbers are often based on dry waste.794 Although most of the MSW increase is due to population growth, the increase in per capita consumption also is important.795

As a result of ever-increasing amounts of solid waste, declining landfill capacity, stricter legal regulations, and rising costs, there is an interest in MSW incineration.796 The RCRA subtitle D regulations for MSW landfills require landfills receiving wastes after October 9, 1993 to comply with strict provisions that are both technically and economically onerous.797 The costs of compliance help make incineration an attractive option, but the air pollution control costs and the problems of obtaining site approval make land disposal an attractive option. About 16% of all MSW is incinerated.798

The first municipal incinerator was constructed in Allegheny, Pennsylvania in 1885, and other cities soon followed by building “crematories” for their MSW.799 During the late 1930s, the number of MSW incinerators in the United States declined substantially with most MSW ending up in landfills.800 When the CAA of 1970 was enacted, it essentially banned uncontrolled burning, thereby leading to a renewed interest by local governments in the construction of incinerators.801

The regulation of MSW incinerators (or municipal waste combustors (MWCs)) began with the promulgation in 1987802 of new source performance standards NSPS for particulate matter (PM) [*PG312]emissions from MWCs with more than fifty tons per day capacity under Section 111(b) of the CAA.803 On August 5, 1986, the Natural Resources Defense Council (NRDC) and the states of New York, Rhode Island, and Connecticut petitioned the Administrator of EPA to regulate air emissions from new and existing MWCs using the CAA sections 111 and 112.804 On July 7, 1987, EPA announced an advance notice of proposed rulemaking (ANPRM) to regulate emissions from new or modified MWCs as well as from existing sources.805 Proposed rules for both existing and new MWCs were promulgated December 20, 1989.806 Existing facilities could also be regulated by the states as part of the SIP development807 and might be subject to the nonattainment area provisions.808 EPA issued guidance documents regarding the appropriate technology—usually referred to as “best demonstrated technology” (BDT).809 New sources were required to incorporate gas scrubbers, combustion controls, and particulate controls.810

The CAA Amendments of 1990 created a new CAA section 129 dealing with solid waste combustion.811 Subsection (a)(1) requires the Administrator to establish performance standards for categories of solid waste incineration units under Sections 111 and 129.812 The standards are to include emission limitations for new units and guidelines under Section 111(d) applicable to existing units.813 Under this provision and under the new source performance standards of [*PG313]CAA Section 111, EPA was to regulate MSW incinerators with greater than 250 tons per day input by November 15, 1991.814

Pursuant to section 111 of the CAA Amendment of 1990, EPA promulgated emissions guidelines for existing MWC units in 1991.815 On September 20, 1994, EPA revised the MWC emissions guidelines and issued proposed NSPSs under CAA sections 111 and 129.816

On December 19, 1995, EPA issued a direct final NSPS for both small and large MWC facilities.817 At the same time, a proposed rule to revise the “Standards of Performance for Municipal Waste Combustors” (subpart Ea) was issued.818 Regulations promulgated as 40 C.F.R. part 60, subpart Ea apply to MWCs for which construction or modification commenced after December 20, 1989, but on or before September 20, 1994.819 The new regulation did not significantly change the prior regulation, but aimed at improving clarity and making subpart Ea of the regulation more consistent with subparts Eb and Cb.820 Subpart Eb applies to MWCs for which construction commenced after September 20, 1994 or modification or reconstruction commenced after June 19, 1996;821 subpart Cb applies to existing MWCs whose construction commenced on or before September 20, 1994.822 In the regulations of December 19, 1995, some of the applicable dates and definitions were changed.823 The 1991 standards824 applied to MWCs with capacities above 225 [*PG314]megagrams per day (Mg/day).825 The 1995 standards apply to MWCs over 35 Mg/day and are usually more stringent.826

Almost half of the estimated 307 operating MWC units at 128 plants have been built since 1990 and are equipped with high efficiency air pollution control equipment.827 The older half of the MWC population had to meet lower standards, and the 1995 regulations are designed to bring all MWC units up to the same high performance level.828 A summary of the Subpart Cb guidelines for existing MWCs is found in Table 3 at 60 Federal Register 65,399 (1995).829

The December 19, 1995 regulations made the distinction between large and small MWC facilities based on the aggregate capacity of all the MWC units at each MWC facility.830 In Davis County Solid Waste Management and Recovery District v. EPA, the U.S. Court of Appeals for the D.C. Circuit vacated the rule for both categories.831 Upon a rehearing, however, the court reconsidered the remedy and remanded the rule to EPA regarding the large MWC units, but the rule remained vacated as to the smaller MWC units.832 The regulations for large MWC facilities that incorporated the court decision were promulgated on August 25, 1997.833 On August 30, 1999, EPA issued a proposed rule for NSPS that would apply to small MWC units that are “functionally equivalent” to the 1995 regulations.834

Incinerator facilities are not evenly distributed geographically.835 Currently, the greatest incineration capacity exists, in descending [*PG315]order, in Florida, New York, Massachusetts, Ohio, and Virginia.836 More than 40% of the MWCs are located in New England and the mid-Atlantic regions combined; few are located in the Rocky Mountains or further west.837 Seventeen states have received delegated authority to implement plans for large MWC units.838 Approximately thirty-one states and territories have sent negative declarations to EPA stating that no MWC units subject to the regulation existed in their state or territory.839 A large MWC unit is subject to regulation if it has the capacity to combust more than 250 tons per day of municipal solid waste.840 Large MWC units in states that do not have a state plan are subject to the Federal Plan Guidelines and Emission Limits promulgated on November 12, 1998.841 The state plans and the federal plan all contain nine common elements:842

(1) identification of legal authority;

(2) identification of mechanisms for implementation;

(3) inventory of affected facilities;

(4) emissions inventory;

(5) emissions limits;

(6) compliance schedules;

[*PG316] (7) public hearing requirements;

(8) reporting and recordkeeping requirements; and

(9) public progress reports.

C.  Medical Waste Incineration

Approximately 2400 hospital/medical/infectious waste incinerators (HMIWIs) operate in the United States, and they combust about 846,000 tons of hospital/medical/infectious waste (HMIW) each year.843 The EPA estimated that there are approximately 1139 small, 682 medium, and 463 large HMIWIs, and 79 commercial HMIWIs.844

Medical waste accounts for less than 2% of all municipal solid waste produced in the United States,845 but its potential public health [*PG317]impact has made it a subject of concern.846 In 1990, EPA estimated that about 375,000 medical waste generators produce approximately 500,000 tons of medical waste in the United States each year.847 Of the 500,000 tons of medical waste, infectious waste makes up approximately 465,600 tons, 359,000 tons of which is generated by hospitals.848 About 7100 hospitals in the United States produce over three-fourths of the total volume of infectious waste,849 but they make up slightly less than 2% of the total number of HMIW generators.850 EPA attributed generation of the remaining 23% of infectious waste, by volume, to eight other types of infectious waste generators.851

The rule was expected to cause 50to 80% of all HMIWI units to cease operations.852 The “EPA estimated the rule will carry capital costs in 2002 of between $12 million and $26 million, and annual operating costs that range from $60 million to $120 million.”853

On November 14, 1997, the Sierra Club and the Natural Resource Defense Council filed suit against EPA in the U.S. Court of Appeals for the D.C. Circuit, alleging primarily that EPA failed to comply with CAA section 129(a)(2) regarding the MACT “floors.”854 While the D.C. Circuit upheld EPA’s statutory construction of the MACT floor requirement, it nonetheless remanded the rule back to EPA. When examining the data EPA used to set limits, the court stated [*PG318]that with the data collected, “EPA’s method looks hopelessly irrational.”855

VI.  Prevention of Accidental Releases of HAPs

A.  CAA Section 112(r)

Section 112(r) of the 1990 CAA created the first significant federal program to focus on the prevention of accidental catastrophic environmental releases of hazardous pollutants. There are three major elements to the program: (1) identify hazards which may result from releases of extremely hazardous substances; (2) design and maintain a safe facility, taking the steps necessary to prevent releases; and (3) minimize the consequences of accidental releases that nevertheless occur.856 A general duty clause, similar to OSHA’s,857 imposes on owners and operators a requirement “to design and maintain a safe facility . . . to prevent releases, and to minimize the consequences of accidental releases which do occur.”858 The requirements are performance-based; they do not specify how something must be done, only that the manner in which the requirements are met minimizes the risk of release.859 The subsection also creates an independent Chemical Safety and Hazard Investigation Board (CSB) modeled after the National Transportation Safety Board.860 The Board is to investigate accidental releases and make reports, including recommending the adoption of regulations for the preparation of risk management plans to prevent accidental releases and to mitigate the adverse effects of accidents.861

The section 112(r) program applies to accidental releases of substances listed pursuant to section 112(r)(3) or “any other extremely hazardous substance.”862 Congress included a list of sixteen chemicals in the statute and gave EPA until November 15, 1992 to [*PG319]create an initial list of 100 substances.863 EPA may revise the list on its own motion or by petition and is required to review the list at least every five years.864 The basis for listing is the severity of acute health effects, the likelihood of accidental release, and the potential magnitude of human exposure.865 At the time a substance is listed, the Administrator must establish a threshold quantity for the substance “taking into account the toxicity, reactivity, volatility, dispersibility, combustibility, or flammability of the substance.”866 The statutory language “or any other extremely hazardous substance” is not defined in the statute.867

By November 15, 1993, EPA was required to promulgate regulations applicable to stationary sources with regulated substances present in more than threshold quantities.868 Owners or operators of such sources must prepare a risk management plan to detect and prevent or minimize accidental releases and to provide a prompt emergency response.869 While this program is focused on the prevention of accidental releases, it is to be coordinated with similar efforts under CERCLA, EPCRA, and the CWA.870

The section 112(r) program applies to stationary sources, defined at section 112(r)(2)(C).871 A stationary source can include many emission points from which an accidental release may occur if they belong to the same industrial group, are located on contiguous properties, and are under common control.872 Section 112(r) is intended to prevent or to minimize the consequences of an accidental release.873 The term “accidental release” is not defined and has only a limited legislative history.874

[*PG320] States may run the section 112(r) program based on EPA’s authority to delegate, but some states are not seeking to take either full or partial delegation for implementing the program.875 They are concerned with their potential liability if an accident occurs after they have audited a facility and have approved it, or if the state has not audited the facility and an accident occurs. Florida, Puerto Rico, the Virgin Islands, Georgia, and Ohio had delegated authority as of July 2000.876 Other states, including California, Louisiana, Mississippi, Nevada, New Jersey, Delaware, and South Carolina have expressed an interest in running the 112(r) program. California, Delaware, Nevada, and New Jersey have state programs that mirror the section 112(r) program.877

B.  The CSB

The CSB had significant problems becoming operational.878 Congress provided funding in 1991 and 1993, but rescinded the funding when President Clinton did not nominate members for the CSB.879 The President nominated three people in late 1994 for CSB membership.880 Congress then approved $500,000 for the CSB during fiscal year (FY) 1995, but President Clinton reversed his position and asked Congress to rescind the CSB’s funding, which Congress did on July 27, 1995.881 For FY 1996, OSHA and EPA received approximately $4 million each to carry out the tasks assigned to the CSB.882 In FY 1997 the Clinton administration and Congress agreed to a $4 million start-up appropriation for the CSB.883 It began operations in January [*PG321]1998.884 The Board operated with just two board members for the first eleven months, and at the beginning of 1999 two others joined the Board.885 One of the board members also serves as Chairperson and Chief Executive Officer.886 All substantive board decisions are made by the Chairperson.887 In August, 1999, the Board’s general counsel issued a legal opinion that the Board as a whole should make most of the substantive decisions and the Chairperson should handle day-to-day management.888 The Department of Justice (DOJ) concurred with the opinion, and a dispute arose between the Chairperson and the other board members.889 The Chairperson resigned in January, 2000 as Chair, but remains a board member.890 The Board has allocated the Chairperson’s responsibilities among themselves and acts collectively when making decisions while awaiting the appointment of another Chairperson.891

In FY 1999, the CSB had a $6.5 million budget, but its Chairman told Congress the money needed to be doubled as chemical accidents kill 250 people annually and result in 60,000 chemical releases that need to be investigated.892 In 1998, the Board undertook five investigations, and as of mid-1999 had issued reports in two.893 The investigations took nine and eleven months, respectively, from start to finish.894 Six investigations commenced in 1999, and in April, 1999 [*PG322]the CSB’s Chairman announced it would not begin any new probes because it lacked funds.895

The CSB functions overlap those of EPA, OSHA, and the National Transportation Safety Board (NTSB). EPA has authority under the CAA section 112(r), as well as responsibilities for chemical accidents pursuant to numerous statutes that it administers, especially CERCLA section 104.896 OSHA has its Process Safety Management (PSM) Standard897 that covers any process898 that involves a highly hazardous chemical. The PSM Standard imposes responsibilities on employers to prevent accidents and to have operating procedures to deal with covered processes.899 The NTSB is responsible for investigating every civil aviation accident and other significant railroad, ship, highway, and pipeline accident in the United States.900 The organizations have created a memorandum of understanding (MOU) to resolve their jurisdictional conflicts.901

On September 25, 1998, the CSB signed an MOU with OSHA that established policy and procedures for cooperation among the two organizations.902 Under the agreement, OSHA has primary responsibility for investigating employer compliance with job safety and health regulations.903 The CSB will have the responsibility to determine the cause or probable cause of chemical incidents.

On March 16, 1999, EPA and the CSB signed an MOU addressing their respective responsibilities.904 EPA as the On-Scene-Coordinator has the responsibility for dealing with an accidental release. Once a release is contained, EPA will determine whether a facility was in compliance with relevant safety and environmental statutes; CSB will determine the cause of the accident.905 The CSB will investigate chemical incidents resulting in death, serious injury, substantial [*PG323]property damage, or evacuation; it is not limited to incidents involving extremely hazardous chemicals.906 Information submitted under the requirements of the risk management plans (RMPs) will be disclosed to the CSB by EPA pursuant to the MOU.907

The extent to which the CSB will grow in importance will depend on how well the board’s leadership plays the political game.908 The CSB’s limited success to date is the result of Congressional dissatisfaction with OSHA and support by labor unions and environmental groups (particularly the Environmental Defense Fund).909 Industry also has supported the CSB as being the organization to perform investigations because the CSB is prohibited from having its findings used as evidence in a civil suit for damages.910

C.  OSHA and CAA Section 112(r)

When the 1990 CAA section 112(r) was enacted, the newly created CSB was given some of OSHA’s responsibilities as well as responsibility for releases to the ambient air.911 In addition, section 304 of the CAA Amendments of 1990 requires OSHA to promulgate a chemical process standard to protect employees from accidental releases of highly hazardous chemicals. On February 24, 1992, OSHA promulgated its standard.912 EPA and OSHA, as previously discussed, have attempted to coordinate their rules to minimize conflicting requirements.913 OSHA and EPA use a similar list of pollutants for each of their chemical safety programs, which required OSHA to adopt EPA’s larger list and lower thresholds.914 This is expected to [*PG324]streamline efforts to produce risk management plans under CAA section 112(r).915

EPA’s proposed section 112(r) regulations were nearly identical to OSHA’s process safety management standard.916 The main differences are those mandated by the CAA, such as the hazard assessment with its required offsite consequences analysis and five-year accident history. 917 Other CAA requirements include emergency response requirements; registration; and a risk management program that must be submitted to the CSB, the implementing agency, the state emergency response commission (SERC), the local emergency planning commission (LEPC), and must be made available to the public.918 The OSHA standard includes provisions applicable to workers that are not part of EPA’s proposal. But, if a facility meets OSHA requirements, it will probably be in compliance with EPA’s accident prevention program.919 EPA’s coverage of chemicals and thresholds, however, is not the same as OSHA’s.920 EPA covers more substances with acute toxic effects, but covers fewer flammables and explosives, and no reactive substances.921 OSHA does not cover state and local government employees.922 In addition, the “OSHA exemptions do not apply or extend to EPA’s Risk Management Program Rule.”923

D.  Regulations Under CAA Section 112(r)

EPA issued final rules concerning the list of regulated substances and thresholds covered under section 112(r) of the CAA on January 31, 1994.924 These regulations cover seventy-seven toxic substances, [*PG325]sixty-three flammable substances, and the explosive substances listed by the Department of Transportation (DOT).925 These substances are explained and listed in 40 C.F.R. part 68, subparts A and C.926 The list includes the name of the substance, its chemical abstract number, and the threshold amount for each substance.927 The threshold amount plays a key role in these regulations. If the total quantity of a regulated substance contained in a process at a stationary source exceeds the threshold amount listed in 40 C.F.R. section68.130, then the facility is subject to the accidental release prevention requirements described in section 112(r) of the CAA.928 The chemicals most likely to require a section 112(r) response include chlorine, because of its low threshold and its common use in water and wastewater treatment, and flammables. The list was amended on August 25, 1997929 to change the concentration of hydrochloric acid, and on January 6, 1998 to delist Division 1.1 explosives as classified by the DOT.930 Another August 25, 1997 amendment clarified the method for calculating the quantity of a listed solution and stated that certain reports required under section 112(r) did not need to be reported under section 8(e) of the Toxic Substances Control Act.931

EPA promulgated proposed regulations for implementing CAA section 112(r)(7) on October 20, 1993.932 A supplemental notice was [*PG326]issued on March 13, 1995.933 The supplemental notice stated that section 112(r) is also subject to the operating permit program in 40 C.F.R. part 70934 because section 112(r)’s listed substances are “regulated air pollutants,” and because the accident prevention regulations implementing section 112(r)(7) are “applicable requirements” under the operating permit program.935 On June 20, 1996, EPA promulgated a final rule for risk management programs under section 112(r)(7).936 The rule is codified at 40 C.F.R. sections 68.3 to 68.22.937 EPA also published a stay of implementation of certain provisions on June 20, 1996.938

EPA’s final rule requires nearly 70,000 facilities that handle regulated chemicals to develop risk management plans under CAA section 112(r).939 Manufacturers of listed chemicals are subject to the new rule, as are cold-storage facilities that utilize ammonia, public drinking water treatment plants, wastewater treatment plants, chemical wholesalers, propane retailers, and oil refineries.940 Much of the propane industry was later exempted from these requirements pursuant to the Chemical Safety Information, Site Security, and Fuels Regulatory Relief Act passed in 1999.941

To determine whether a specific stationary source is subject to CAA section 112(r)(7) requires an examination of the list of substances and thresholds under 40 C.F.R. section 68.130; the proposed modifications of April 15, 1996;942 the stay of [*PG327]implementation promulgated on June 20, 1996;943 and the applicability criteria in 40 C.F.R. section 68.10 of the final rule.944 The regulatory amendments made on January 6, 1998 clarify that the “Chemical Accident Prevention Provisions [part 68] do not apply to sources located on the Outer Continental Shelf,” and that the “definition of stationary source is modified to clarify the exemption of transportation and storage incident to transportation and to clarify that naturally occurring hydrocarbon reservoirs are not stationary sources or parts of stationary sources.”945

Stationary sources covered by these regulations must develop and implement a risk management program that includes a hazard assessment, a management program, a prevention program, and an emergency response program. The risk management program must be described in a risk management plan (RMP) that must be registered with the EPA, submitted to state and local authority, and made available to the public.946

An owner or operator of a stationary source that has more than a threshold quantity of a regulated substance in a process is required to comply by either June 21, 1999, three years after the substance is listed, or the date on which a regulated substance is first present, whichever date is latest.947

E.  Section 112(r) Program Levels

Processes are divided into three tiers, labeled programs “1,” “2,” and “3,” shown in Appendix 4. Each program level and the requirements reflect the appropriate level of risk.948 A source can be subject to one or more programs for its various processes.949 Each process is assigned a program level, and only one program level is assigned to each process.950 Processes cannot be subdivided for the [*PG328]purpose of assigning program levels.951 Program level 1 applies to any process with no accidental release “with offsite consequences in the five years prior to the submission date of the RMP and has no public receptors within the distance to a specified toxic or flammable endpoint associated with a worst-case release scenario.”952 Program level 2 is the default program and applies to all those processes not subject to program levels 1 or 3.953 Program level 3 applies to processes in ten specified North American Industry Classification System codes.954 It also applies to all processes subject to OSHA PSM standard.955 It is in a facility’s best interest to qualify for program level 1, if possible.956

If a facility has multiple processes subject to different program levels, the facility must comply with the requirements of the applicable level for each process and submit a single RMP for all covered processes.957

1.  Hazard Assessment

The hazard assessment includes the five-year accident history and the offsite consequence analysis.958 While the five-year history must be completed for each process, only certain releases are covered.959 The release must: (1) be from a covered process involving a regulated substance above the threshold amount; and (2) result in an on-site death, injury, or significant property damage or known offsite deaths, injuries, property damage, environmental damage, evacuations, or sheltering.960 Every reported release must include the date, time, chemical involved, release duration, release event, quantity released, release source, weather condition, onsite impacts, offsite impacts, [*PG329]initiating event, contributing factors, whether offsite responders were notified, and what changes were introduced as a result of the accident.961

The offsite consequence analysis has two parts: the worst-case release scenario and the alternative release scenario.962 A “worst-case release scenario” is defined as:

the release of the largest quantity of a regulated substance from a vessel or process line failure, including administrative controls and passive mitigation that limit the total quantity involved or the release rate. For most gases, the worst-case release scenario assumes that the quantity is released in ten minutes. For liquids, the scenario assumes an instantaneous spill; the release rate to the air is the volatilization rate from a pool one centimeter deep unless passive mitigation systems contain the substance in a smaller area. For flammables, the worst case scenario assumes an instantaneous release and a vapor cloud explosion.963

There are five basic components of a worst-case scenario. These are:964

(1) define worst case;

(2) select scenario;

(3) determine release rate;

(4) determine endpoints; and

(5) determine reference table and distance.

EPA has adopted the term “alternative release scenarios” to mean an accidental release scenario that is “more realistic” and “more probable” than the worst-case scenario and will reach an endpoint offsite.965 “EPA believes sources should have flexibility to select non-worst-case scenarios that are the most useful for communication with [*PG330]the public and first responders and for emergency response preparedness and planning.”966

An endpoint is needed for the offsite consequence analysis. Appendix A of the final rule lists the endpoints for toxic substances that must be used in worst-case and alternative scenario assessment.967 The endpoint is its Emergency Response Planning Guideline level 2 (ERPG-2) value, or if no ERPG-2 applies, then the endpoint is the level of concern (LOC) from the Technical Guidance for Hazards Analysis.968 The endpoints may also be found and/or calculated in EPA’s 1999 guidance entitled Risk Management Program Guidance for Offsite Consequence Analysis.969 Populations potentially affected are those within a circle that have as its center the point of release and its radius the distance to the toxic or flammable endpoint.970

2.  Management Programs

A management system is required under program levels 2 and 3.971 The facility must delegate the responsibility of the implementation of the risk management program to a person or persons.972 The only required element in the RMP is the name of the individual with overall responsibility.973

3.  Prevention Programs

For program level 2 sources, there are seven elements of the prevention program requirements.974 These include: compiling safety information,975 hazard review,976 operating procedures,977 training,978 maintenance,979 compliance audits,980 and accident investigation.981

[*PG331] For program level 3 sources there are more detailed requirements.982 They include the requirements of OSHA PSM Standard,983 with minor wording changes.984 However, because EPA and OSHA have differing legal authority for offsite consequences and onsite consequences, respectively, a facility may need to expand on the process hazard analysis to meet EPA’s RMP requirements.985 “There are twelve elements in the program level 3 prevention program. Each element corresponds with a section of subpart D of part 68 [of 40 C.F.R.], as listed in Table 2.”986

Table 2
Summary of Program Level 3 Prevention Program987
(40 C.F.R. 68 subpart D)
40 C.F.R. Title OSHA PSM Reference
 68.65 Process Safety Information PSM standard  1910.119(d)
 68.67 Process Hazard Analysis PSM standard  1910.119(e)
 68.69 Operating Procedures PSM standard  1910.119(f)
 68.71 Training PSM standard  1910.119(g)
 68.73 Mechanical Integrity PSM standard  1910.119(j)
 68.75 Management of Change PSM standard  1910.119(l)
 68.77 Pre-Startup Review PSM standard  1910.119(I)
 68.79 Compliance Audits PSM standard  1910.119(o)
 68.81 Incident Investigation PSM standard  1910.119(m)
 68.83 Employee Participation PSM standard  1910.119(c)
 68.85 Hot Work Permit PSM standard  1910.119(k)
 68.87 Contractors PSM standard  1910.119(h)

4.  Emergency Response

Facilities with program levels 2 or 3 may be required to submit emergency response plans.988 Plans developed to comply with other EPA contingency planning requirements and OSHA Hazardous Waste Operations and Emergency Response (HAZWOPER) rule,989 however, are expected to meet most of the requirements of the emergency [*PG332]response program for non-responding facilities.990 Facilities that have their own employees respond to an emergency may have to implement an emergency response program “consisting of an emergency response plan, emergency response equipment procedures, employee training, and procedures to ensure the program is up-to-date.”991 This requirement may be consolidated with other required emergency plans following the National Response Team Integrated Contingency Plan Guidance to prevent a duplication of efforts.992

5.  RMP

A risk management program is what you do, an RMP is what you submit. An RMP that meets CAA section 112(r) requirements has three major components: a hazard assessment that includes a release history for the past five years, a program to prevent accidental releases, and a response program that provides for the actions to be taken in an emergency.993 Each stationary source that has a regulated substance in more than a threshold quantity must prepare an RMP to detect and prevent or minimize accidental releases and to provide a prompt emergency response to any release.994 The RMP is a summary of the risk management program that is registered with the Administrator of EPA, and is also submitted to the Chemical Safety and Hazard Investigation Board, to the state in which the site is located, and to any local agency with planning or response responsibility for responding to accidental releases.995 It must contain all information required by 40 C.F.R. sections 68.155 through 68.185.

An RMP must include:996

(1) an executive summary;997

(2) the facility’s registration;998

[*PG333](3) the certification statement;999

(4) a worst-case scenario for each program 1 process;1000

(5) a five-year accident history for each process;1001 and

(6) a summary of the emergency response program.1002

If the facility has processes covered by program levels 2 or 3, the RMP must also include:1003

(1) at least one alternative release scenario for each regulated toxic substance in program 2 or 3 processes and at least one alternative release scenario to cover all regulated flammables in program 2 or 3 processes;1004

(2) a summary of the prevention program for each program 2 process;1005 and

(3) a summary of the prevention program for each program 3 process.1006

Measures taken by sources to comply with OSHA PSM for any process that meets OSHA’s PSM standard are sufficient to comply with the prevention program requirements of all three programs. EPA will retain its authority to enforce the prevention program requirements and the general duty requirements of CAA Section 112(r)(1). EPA and OSHA are working closely to coordinate interpretation and enforcement of PSM and accident prevention programs.1007

Owners or operators had to submit their first RMP by June 21, 1999.1008 After an RMP is submitted, changes in operation may require updates to the RMP (other than the standard update) every five years.1009 If a new substance or new process is added, the RMP must be revised and submitted by the date the substance is first used above the [*PG334]threshold quantity.1010 If changes to processes require revised hazard assessments, or if a process changes the program level, the source must submit a revised RMP within six months.1011 States, local emergency planning commissions (LEPCs), and the public should be able to access all RMPs electronically.1012 See Appendix 5 for a list of RMP update requirements.

The complexity of the risk management plan will depend on whether the “covered process” is subject to a program level 1, 2, or 3. A “covered process” is a process that has greater than threshold quantities of a regulated substance onsite.1013 The RMP is the totality of plans for all covered processes.

The covered process (not the facility) is a program level 3 if it meets chemical threshold requirements and is in NAICS code: 32211 (pulp mills), 325181 (chlor-alkali), 325188 (industrial inorganics), 325211 (plastic and resins), 325192 (cyclic crudes), 325199 (industrial organics), 325311 (nitrogen fertilizers), 32532 (agriculture chemicals), 32411 (petroleum refineries), 32511 (petrochemical manufacturers), or the process is subject to OSHA PSM standard.1014 Most section 112(r) regulated chemicals also are on OSHA’s process safety management list.1015 EPA’s threshold values,1016 for each chemical listed on OSHA’s PSM list, except r methylchloride is lower than OSHA’s threshold; therefore, EPA’s requirements usually will control.

A process that was originally classified as one program level may move up or down in classification, as shown in Appendix 6, depending on the circumstances.1017 For example, if a residential development appears within the public receptor distance for a worst-case scenario endpoint in a program level 1 covered process, that process no longer qualifies for program level 1 and must be re-evaluated for either program level 2 or 3 requirements.1018 A facility [*PG335]with a process originally not covered, but due to changes now uses a regulated substance in quantities exceeding the threshold amount, must comply at the time the threshold quantity is exceeded.1019 Conversely, if a program level 2 or 3 process experiences changes that would qualify it for program level 1 status, the facility may submit a revised RMP to that effect. For example, if an accidental release now falls outside the five-year accident report requirement and that criterion kept the program outside level 1, the facility could elect to switch down to a program level 1.1020 If a process no longer involves regulated substances beyond the threshold quantity, then the process is no longer a “covered process” and the facility may submit a revised RMP indicating such.1021

The RMPs were first due on June 21, 1999.1022 EPA expected between 33,000 and 36,000 RMPs.1023 Many facilities changed their operations to avoid CAA section 112(r) requirements by changing the chemicals used or by lowering the inventory below threshold amounts.1024 One of the fears, however, is that avoiding RMPs by lowering inventories means increased transportation and deliveries of those same hazardous chemicals.1025

On August 5, 1999, the Chemical Safety Information, Site Security, and Fuels Regulatory Relief Act was signed into law.1026 To alleviate concerns about terrorists using publicly available off-site consequence analysis (OCA) information, the law limits public access until at least August 5, 2000.1027 By this date, EPA is expected to issue a rule addressing the public availability of OCA materials.1028 If a facility is required to submit a program level 2 or 3 plan, then the facility is required to hold a public meeting, discuss the RMP, and include a [*PG336]summary of the OCA.1029 The law does not preclude the facility from discussing the OCA sections of the RMP; it prohibits the government dissemination of such information.1030 The law also “immediately removed EPA’s authority to list flammable substances when used as a fuel, or held for sale as a fuel at a retail facility.”1031 EPA therefore amended the regulations in 2000 to conform to the law.1032 On August 8, 2000, EPA issued a rule placing restrictions on the dissemination of worst case scenario data. The data will not be placed on the internet, reproduction of the documents will be prohibited, and there will be a limited number of facility reports that may be viewed by an individual.1033

F.  The General Duty Clause

CAA section 112(r)(1) includes a general duty clause that imposes on owners and operators of stationary sources handling extremely hazardous substances:

a general duty in the same manner and to the same extent at section 654 of Title 29 [OSH Act] to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences, of accidental releases which do occur.1034

The section goes on to state that it does not create liability, a basis for a suit for compensation for bodily injury, or property damages.1035

[*PG337] The legislative history of the general duty clause shows that it has two purposes.1036 It places a burden of prevention and minimization on owners or operators without regulatory action by EPA, and it prevents shifting of liability to the government because of EPA’s approval of risk management plans.1037

The general duty clause applies to owners and operators of stationary sources that handle extremely hazardous substances regardless of whether the federal or state government has an applicable regulatory program.1038 The clause imposes three obligations:

(1) identify hazards from potential accidental release;

(2) design and maintain a safe facility in taking the necessary steps to prevent release; and

(3) minimize damage from actual accidental releases.1039

The general duty clause itself does not prescribe how these measures will be achieved.1040 The clause is performance-based; it places the burden on those using these substances to demonstrate safe practices regarding accidental releases.1041 EPA has issued a guidance document, however, to assist in complying with the section 112(r)(1) requirements.1042

The general duty clause applies more broadly and may cover more substances and activities than the rest of section 112(r).1043 It does not, however, apply to transportation or to storage incidental to transportation.1044 Because the general duty clause is based on OSHA,1045 the case law construing OSHA, including the decisions of the Occupational Safety and Health Review Commission, are applicable.1046 It should be noted, however, that only EPA and the [*PG338]DOJ can enforce the general duty clause.1047 States, even those with delegation of risk management programs, cannot enforce the clause.1048

G.  Air Permitting

Air permitting authorities must ensure that sources are in compliance with applicable requirements. Because section 112(r) is an applicable requirement, EPA has identified in the section 112(r) final rule the permit conditions and the actions necessary to ensure compliance.1049 An operating permit must identify 40 C.F.R. part 68 as an applicable requirement and establish conditions that require the owner or operator of the source to submit either a compliance schedule for meeting the requirements of part 68 by the date specified in 40 C.F.R. section 68.10(a), or as part of the compliance certification submitted under 40 C.F.R. section 70.6(c)(5), certify that to the best of the owner or operator’s knowledge the source is in compliance with all requirements of part 68, including the registration and submission of the RMP.1050 The owner or operator also must submit additional relevant information requested by the air permitting authority to ensure compliance with part 68.1051

An April, 20, 1999 EPA memorandum lists the four responsibilities that Title V air permitting agencies have under 40 C.F.R. section 68.215(e).1052 These include verifying that the source owner or operator has submitted the required RMP or RMP revision, verifying the source certification or its equivalent, conducting a completeness check if necessary, and instituting enforcement actions when appropriate.1053 The memorandum continues with guidance as to how states and implementing agencies can best meet these obligations.1054

[*PG339]H.  Integrated Planning

CAA section 112(r)(10) requires the President to review federal agency policies for release prevention, mitigation, and response authorities, and to clarify and coordinate federal agency responsibilities.1055 The implementation of this subsection was delegated to EPA’s Chemical Emergency Preparedness and Prevention Office (CEPPO) in coordination with the fourteen agencies that make up the National Response Team (NRT).1056 EPA, the Coast Guard, OSHA, DOT, and the Department of Interior’s Minerals Management Service have created an Integrated Contingency Plan (ICP) to deal with hazardous releases.1057

On June 5, 1996, the NRT’s ICP guidance was published.1058 The guidance

is intended to be used by facilities to prepare emergency response plans. . . . The intent of NRT is to provide a mechanism for consolidating multiple plans that facilities may have prepared to comply with various regulations into one functional emergency response plan or integrated contingency plan (ICP).1059

The guidance does not alter requirements, but rather provides an organizing format for required material under current regulations.1060 There are three main sections: an introduction, a core plan, and supporting annexes.1061

The introduction contains information on the facility, response personnel, and other key contact information.1062 The structure of the core plan and annexes is based on the National Interagency Incident Management System (NIIMS) Incident Command System (ICS), [*PG340]which is a response management system used for a multitude of emergency situations.1063

“The core plan is intended to reflect the essential steps necessary to initiate, conduct, and terminate an emergency response action: recognition, notification, and initial response, including assessment, mobilization, and implementation.”1064 The core plan should be concise and simple, with checklists and flowcharts used whenever possible.1065 The core plan also should follow a system of response levels based on the potential consequences to health and the environment and the need to communicate information to off-site authorities.1066 The response levels should be as consistent as possible with those in place by local emergency planning organizations.1067

The annexes are “designed to provide key supporting information for conducting an emergency response under the core plan as well as document compliance with regulatory requirements not addressed elsewhere in the ICP.”1068 The annexes are meant to be supplementary rather than duplicative.1069

VII.  Emergency Planning Under EPCRA

Releases of toxic chemicals during the five years prior to 1985 caused 135 deaths and nearly 1500 injuries in 6900 incidents in the United States.1070 This led to a successful grassroots effort to create emergency planning programs at the state and local levels. When a Union Carbide facility in Bhopal, India released a toxic pesticide, methyl isocyanate, on December 4, 1984, that killed 2500 people and injured 200,000 others, it influenced the United States Congress to enact new legislation.1071 Congress included a freestanding Title III in [*PG341]SARA1072 that created the Emergency Planning and Community Right-to-Know Act (EPCRA).1073

A.  Planning Requirements Under EPCRA

EPCRA1074 contains four major provisions: emergency planning (sections 301–303), emergency release notification (section 304), hazardous chemical storage reporting requirements (sections 311–312), and the toxic chemical release reporting requirements (section 313),summarized at Appendix 7.1075

EPCRA requires EPA to publish a list of extremely hazardous substances and to establish a “threshold planning quantity” for each listed substance.1076 Under section 302, EPA initially created chemical profiles for 402 “acutely toxic chemicals” in 1986.1077 The list now contains 356 substances subject to section 302 requirements.1078

Under EPCRA the states must establish a state emergency response commission (SERC), which creates local emergency planning committees (LEPCs).1079 EPCRA requirements deal primarily with notification requirements and post-accident response.1080 There is little focus on accident prevention. EPCRA1081 is a chemical “freedom of information act” that applies to the private [*PG342]sector.1082 It evolved from EPA’s Chemical Emergency Preparedness Program (CEPP), begun in 1985; numerous state programs,1083 especially New Jersey’s 1985 Toxic Catastrophe Prevention Act; 1084 and in programs developed under the OSH Act.1085

Emergency planning proceeds under several statutes administered by five agencies (EPA, the Coast Guard, OSHA, DOT, and the Minerals Management Service in the Department of Interior). EPA’s approach is to use a “one-plan guidance” to meet the requirements imposed by EPCRA, the Oil Pollution Act, CAA section 112(r), and the OSHA process safety standard.1086 In addition, EPA encourages facilities to coordinate the development of a plan with state and local agencies in order to meet any additional requirements that may be imposed.1087

1.  State and Local Committees

EPCRA requires the governor of each state to designate a state emergency response commission (SERC).1088 State commissions must designate local emergency planning districts and appoint local emergency planning committees (LEPC) for each district.1089 There are approximately 3500 LEPCs.1090 Thirty-five states designated counties as the planning district, with some states having separate districts for municipalities; ten states use substate planning districts; and five states use the entire state as a district. The state commission [*PG343]supervises and coordinates the local emergency planning committees.1091

The LEPC must include members with a variety of relevant skills, as specified in EPCRA section301(c).1092 Its primary responsibility is to develop an emergency response plan and review it at least annually.1093 The plan must include provisions specified in EPCRA section 303(c).1094 These are:

1. identify facilities using extremely hazardous substances, and the expected transportation routes of those substances and other facilities at risk from such substances;

2. methods and procedures to be used by owners, operators, emergency and medical personnel;

3. designation of community and facility emergency coordinators;

4. public notification procedures;

5. methods to detect and predict impact of a release;

6. a description of the emergency equipment in the community and at each facility;

7. evacuation plans;

8. training programs; and

9. methods and schedules for exercising the emergency plan.1095

Guidance in developing safety programs is available from the private sector as well as the government.1096 The American Institute of Chemical Engineers, through its Center for Chemical Process Safety, has published documents concerning chemical process safety.1097 The Chemical Manufacturers Association has developed a Responsible CareTM program that is required for its members.1098 The American [*PG344]Petroleum Institute has developed a similar program.1099 In 1982, the European Community adopted the Seveso Directive (82/501/EEC, as amended), which has risk management requirements.1100 In 1990, the NRT published Developing a Hazardous Materials Exercise Program.1101

The local committees are to focus on, but are not limited to, the over 350 extremely hazardous substances listed at 40 C.F.R. part 355, appendix A.1102 For each of these substances, EPA has developed threshold planning quantities, based largely on the physical characteristics of the chemical, that are also found in 40 C.F.R. part 355, appendix A.1103 Whether chemicals at the facility exceed the threshold planning quantity is determined using the procedures found in 40 C.F.R. section 355.30(c). Any facility that has a listed chemical in greater than threshold planning quantities must notify the SERC and the LEPC within three months after the chemical is first present at the facility.1104

A 1994 survey of the LEPCs found that 55% were either highly or mostly compliant with EPCRA requirements.1105 However, 21% are inactive or defunct.1106 Approximately two-thirds of the inactive LEPCs base their problem on local community indifference, and 38% on inadequate financing.1107 Most of the inadequacies in compliance involve the public communication requirements.1108

2.  Sections 311 and 312 of the EPCRA

The requirements of EPCRA sections 311 and 312 build on the hazard communication standard (HCS) that was promulgated under OSHA.1109 The aim of the HCS is to have chemicals that are produced [*PG345]or imported evaluated for potential hazards and to have the information concerning those hazards communicated to employers and employees.1110 Required information includes container labeling and other warnings, and the contents of material safety data sheets (MSDSs).1111 Employee training is required.1112 The workplace must have a list of the hazardous chemicals present, containers must be properly labeled, and MSDSs must be available.1113 The HCS has no list of hazardous chemicals; rather, OSHA defines hazards.1114 This means that the number of chemicals covered is larger than under CERCLA or the other sections of EPCRA—approximately 500,000.1115 Some chemicals, however, such as hazardous waste, are excluded from the HCS.1116

An employer must have an MSDS for each hazardous chemical that is produced or imported.1117 Such MSDSs must accompany chemicals that are shipped and be readily accessible to employees.1118 Among many requirements, the MSDS must include OSHA permissible exposure limits (PEL), the American Congress of Governmental Industrial Hygienists (ACGIH), Threshold Limit Value (TLV), if any, as well as other exposure limits.1119 If the chemical is on the National Toxicology Program Annual Report on Carcinogens, or other official lists of carcinogens, it must be appropriately indicated.1120

Under EPCRA section 311, if a facility is required to prepare an MSDS for a hazardous chemical1121 as mandated by OSHA,1122 then the facility must also submit an MSDS to the appropriate local [*PG346]emergency planning committee, the state emergency response commission, and the facility’s local fire department.1123 Both manufacturing and nonmanufacturing sectors of industries where workers are exposed to hazardous chemicals are subject to these requirements.1124 In the case of chemical mixtures, an MSDS can be filed for each hazardous component of a given mixture, or an MSDS can be filed for the mixture itself.1125 In lieu of submitting an MSDS for every hazardous chemical at the facility, the facility may send the relevant agencies a list of chemicals at the facility.1126 Such a list shall include the following as specified in EPCRA’s section 311(a)(2)(A):

1. a list of the hazardous chemicals for which a material safety data sheet is required under the OSHA, grouped in categories of health and physical hazards as set forth in the OSHA;

2. the chemical name or common name of each chemical as provided on the MSDS; and

3. any hazardous component of each chemical as provided on the MSDS.1127

The material safety data sheets must be made available to the public in accordance with the procedure described in section 324 of EPCRA.1128 The LEPC must make the MSDSs they receive available to any person upon request.1129 If the local committee does not have the MSDS in question because the facility submitted a list of hazardous chemicals rather than copies of the MSDSs, the local planning committee can require the facility to submit the MSDS in question.1130 Often, local committees request that they receive only lists from a facility, not all of the MSDSs, in order to avoid a deluge of paperwork that would be useless during an emergency.1131 However, if the facility submits a chemical list, the list must include common names of the [*PG347]substances and identify the appropriate hazard category.1132 The five hazard categories include: immediate or acute health hazard, delayed or chronic health hazard, fire hazard, sudden release of pressure hazard, and reactive hazard.1133

If a facility is required to prepare an MSDS, the owner or operator of that facility also must prepare and submit an emergency and hazardous chemical inventory form (inventory form) on an annual basis.1134 The form must be submitted to the LEPC, SERC, and the local fire department.1135 There are two types of inventory forms: Tier I and Tier II.1136 Rules and forms for such reporting can be found at 40 C.F.R. part 370. A facility subject to the requirements of EPCRA section 312 must submit a Tier I form.1137 According to section 312(d)(1)(B), the following information must appear on a Tier I form:

1. an estimate (in ranges) of the maximum amount of hazardous chemicals in each category present at the facility at any time during the preceding calendar year;

2. an estimate (in ranges) of the average daily amount of hazardous chemicals in each category present at the facility during the preceding calendar year; and

3. the general location of hazardous chemicals in each category.1138

If a state emergency planning commission, local emergency planning committee, or the local fire department requests further information from a facility, the facility must then fill out a Tier II inventory form.1139 The Tier II form deals with specific chemicals rather than the chemical categories covered in the Tier I form.1140 EPCRA section 312(d)(2) states that the Tier II form must include the following information:

1. the chemical name or the common name of the chemical as provided on the material safety data sheet;

[*PG348]2. an estimate (in ranges) of the maximum amount of the hazardous chemical present at the facility at any time during the preceding calendar year;

3. an estimate (in ranges) of the average daily amount of the hazardous chemical present at the facility during the preceding calendar year;

4. a brief description of the manner of storage of the hazardous chemical;

5. the location at the facility of the hazardous chemical;

6. an indication of whether the owner elects to withhold location information of a specific hazardous chemical from disclosure to the public under section 324 of EPCRA.1141

State and local officials acting in their official capacities have access to Tier II information by requesting such information from either the SERC or the LEPC.1142 If the facility has not prepared a Tier II inventory form and a state or local official has requested Tier II information, the SERC or LEPC shall request the facility to prepare a Tier II form.1143

Any person may request Tier II information from either the SERC or LEPC.1144 All such requests must pertain to a specific facility and must be made in writing.1145 If the SERC or LEPC has the Tier II information in their possession at the time of the request, such information must be made available to the person making the request.1146 If the SERC or LEPC is not in possession of the Tier II information when the request is made, the state commission or local committee must request a facility to prepare a Tier II form if the facility has stored over 10,000 pounds of a hazardous chemical during the previous calendar year.1147 If the SERC or the LEPC does not possess the Tier II information for the facility and the facility did not store over 10,000 pounds of a hazardous chemical during the previous calendar year, the person requesting the information must include his reason for needing the information in his request.1148 The SERC or [*PG349]LEPC has the discretion to decide whether or not to require the facility to prepare a Tier II form.1149

In 1999, retail gas stations were excluded from EPCRA sections 311 and 312 reporting.1150 There are approximately 550,000 facilities subject to the EPCRA sections 311/312 requirements.1151

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[Pages 351-362]
Appendices