Ten Steps to Avoid Air Fines

Bob Davis wrote an excellent article in the November 2009 issue of Pollution Engineering magazine. (Full disclosure: I write a column there every two months). It is called “10 steps to avoid air fines”. A few of his compliance tips (in italics) are worth repeating here followed by my own commentaries:

• When it comes to ensuring compliance, make everyone responsible. Hallelujah! Make someone responsible for reviewing the air permit – or any permit for that matter. It is amazing how many people spend oodles of money getting a permit and then just file it away in the desk draw without reading it. It is critical that you read and understand the requirements of your own permit. Don’t wait for an inspector to review it for you.
• Follow the EPA online and stay informed on regulatory actions. One good way to do that is to sign up for EPA (and state agency’s) mailing lists. They are FREE and will keep you posted on the latest regulatory requirements.
• Quiz vendors on potential problems that could lead to trouble. If a vendor tells you his equipment is the best thing since sliced bread, tell him to back it up with full indemnification in writing. In other words, if his wonderful machine causes a violation, he pays your fine.
• Practice vigilance when selecting a stack tester. That is excellent advice. Make sure the tester has good working relationship with the agency that will be reviewing the test results. Talk to the regulatory agency BEFORE hiring the tester. If the tester has a questionable reputation, the regulators will let you know in one way or another. They may not come right out and tell you. But you will sense it.
• Get to know the inspectors and do not hesitate to ask them for guidance. That is good advice up to a point. If you have a good working relationship with your inspector, he/she will offer you guidance unofficially. Many agencies specifically prohibit their inspectors from offering consulting advice to the regulated communities. Do not count on your inspectors as your free consultants. Back to the first point – you need to know your own permit conditions.

EPA on enforcement of the Clean Water Act

At a recent Congressional hearing, EPA Administrator Lisa Jackson announced that her agency will be stepping up enforcement of the Clean Water Act. It will be placing more focus on concentrated animal feeding operations, sewer overflows, contaminated water that flows from industrial facilities, construction sites, and runoff from urban streets.

This is another step by the current administration to step away from the approach taken by the last one.

New directions from the Obama EPA

In less than a year into its new administration, the Obama White House and its EPA Administrator Lisa Jackson have already made quite an imprint on the environmental regulatory landscape.

During his first month in office, President Obama directed EPA to review the action taken by the previous administration in prohibiting California from regulating automobile carbon dioxide emissions. This directive followed the Supreme Court’s ruling under Massachusetts v EPA that carbon dioxide is an air pollutant under the Clean Air Act and that EPA must regulate it if it is found to cause harm to public health and welfare.

EPA promptly issued a draft endangerment study on April 14, 2009 proposing that CO2 and other greenhouse gases pose a threat to public health and welfare. On July 1, 2009, EPA reversed the Bush administration’s decision and allowed California to regulate CO2 from tail pipes.

The Obama EPA is tackling the greenhouse gas issues on two fronts. It is working with Congress to develop new cap-and-trade laws to reduce greenhouse gas while developing its own regulations under the Clean Air Act to regulate it.

On September 30, 2009, Lisa Jackson announced that EPA is proposing new regulation under the Clean Air Act to curb greenhouse gas from industries that emit more than 25,000 tons of CO2 per year. This would bring many plants under the new regulation if it becomes final.

The Obama EPA has also dropped a Bush plan to exempt some 3,500 facilities from reporting chemical releases under the Toxic release Inventory. You can expect to see a few more rule reversals in the future.

EPA gets ready to regulate greenhouse gas

On September 30, 2009, EPA announced a proposal that is focused on large facilities emitting over 25,000 tons of greenhouse gases a year. These facilities would be required to obtain permits that would demonstrate they are using the best practices and technologies to minimize GHG emissions.

The rule proposes new thresholds for greenhouse gas emissions (GHG) that define when Clean Air Act (CAA) permits under the New Source Review (NSR) and title V operating permits programs would be required for new or existing industrial facilities.  Click here for a copy of EPA’s fact sheet on this latest regulatory proposal.

The NSR will trigger the need for PSD (Prevention of Significant Deterioration) permits for new source or major modification in attainment areas.

Some observers have noted that this EPA step is a strategic move to motivate industries to lobby the Senate for a Climate Change Bill. Many in industry would prefer to be regulated under a new Climate Change Bill than under the Clean Air Act.

Resist the temptation ……don’t do it!

Has this ever  happened to you?

After you tell your VP of production that he cannot install his new equipment because he has to get a pre-construction permit first, he tells you that it is unacceptable and he threatens to call the state senator or the governor. He wants to “bypass” this lengthy permitting process because customers are clamoring for his products. He has orders to fill. He has to make his numbers. 

Situations like this happen a lot more frequently than you think. The production folks somehow get the idea that the sole purpose of the regulatory agency is to assist them in meeting their production quotas. To the contrary, the agency people are there to implement state and federal laws that say you cannot install any new air emission sources without first getting a pre-construction permit. That’s the law of the land.

If your VP calls up the governor’s office and tries to do an end run on the permitting process, two things will likely happen. First, he will get turned down.  The governor’s office will most likely tell your VP to pay an extra fee to get on the “fast permitting track”. Most agencies have that program. He will still have to wait and get his construction permit.

Second, you will have made an enemy in the permit writer once he  finds out that you try to bypass him. Put yourself in the permit writer’s shoes. How would you feel if some one goes over your head to your boss?

The best way to get a permit in a timely manner is to be upfront with the agency. Provide everything the agency needs to process your permit in a timely manner. Try to do it right the first time. Do not play cat-and-mouse game with the permit writer. Be courteous. Be professional. Remember – the permit is simply doing his job – just like you are. He is not your enemy. But if you treat him like one, he will become one. 

On last point. If you hire a consultant to get a permit for you, make sure that the consultant has a good working relationship with the agency and your consultant gets along with the permit writer. You do NOT want an arrogant  consultant representing you before the agency.

When do you need an air permit?

This is a question asked by many people in industry. In almost every state, you are required to obtain a state operating permit if you have an air emission source unlessthat source is specifically exempt by state regulations. An emission source would be any equipment or facility that is capable of emitting air contaminants to the atmosphere.

Different states have different exemptions. For example, in Illinois you are exempt from getting an air permit if your coating operation uses less than 5000 gallons of coating material including thinners (Illinois Title 35, subtitle B, chapter I, section 201.146(g)). If you have a print shop and you use less than 750 gallons of paint a year, you are exempt as well.

In southern California, the Air Quality Management District (AQMD)’s Rule 219 lists all the emission sources that are exempt from getting an air permit. For example, Rule 219(h) exempts printing operations that emit less than 3 lbs of VOC per day or 66 lbs of VOC per calendar month.

By the way, in every state and under the Clean Air Act, you must obtain a construction permit before you are allowed to install any air emission sources.  Sometime they call it a pre-construction permit. If you have purchased a new piece of equipment that is an emission source, you are not allowed to bolt it to the ground or wire it up. You can unwrap it and have it sit on the shop floor while you are waiting for your construction permit to be approved. Many companies have been fined by EPA for installing equipment without a construction permit. The agency may even order you to uninstall the emission source and pay a fine and apply for a construction permit.

This is often a bone of contention between the environmental staff (you) and production staff (them). The production folks may take 3 years to decide on a new piece of equipment. Once they have purchased it, they want to install it and run it right away. This is where you say to them: “No, you can’t do that. We have to apply for a construction permit first and that may take a month or two.”  If they were smart, they would have told you about the new equipment a month earlier before they take delivery of it so that you could start the permitting process.

That would be the ideal situation.

If you need the construction permit in a big hurry, you can pay the agency a fee to get on the “fast track”.

What is your potential to emit?

The term “Potential to Emit” under the Clean Air Act is defined under 40 CFR 70.2 as “the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design”. You use the PTE to calculate your expected air emission when you are applying for a permit.

For example, if you have a piece of equipment that is designed to operate 24 hours a day and 365 days a year, you will have to calculate your air emission based on these maximum of hours. The agency is going to assume you will be running that equipment 24/7 every day of the week.  Now if the equipment requires an hour of down time for maintenance, you can then use 23 hours per day for your PTE.

If you have a paint booth and you need so many hours per day to switch paints and set it up, you can deduct those hours when calculating your PTE. These are operational designs.

If you voluntarily restrict your operating hours in order to apply for a FESOP (federally enforceable state operating permit), you can use your reduced hours to calculate your PTE. In this case, your voluntary restriction on your operating hours is enforceable by EPA (hence federally enforceable). If you exceed those hours, EPA can take enforcement action against you even though you are operating under a state operating permit. So be very careful when you apply for a FESOP. Make sure you can meet your own operational restrictions.

Satellite Accumulation Points

40 CFR 262.34(c) allows hazardous waste generators to accumulate waste in a 55-gallon container at or near the place of generation. This is known as the satellite accumulation point (SAP) Once the container is full, the generator has 3 days to move it to the central storage area – at which time the usual (90 days or 180 days) accumulation time starts. By the way, you cannot store waste in a SAP for longer than one year in California.

While it is permissble to have more than one SAP if you generate wastes at different locations, it is illegal for waste generator to move waste from one  SAP to another. Doing so would defeat the purpose of having SAPs in the first place – reduce frequencies of waste movement within the plant.

Returning a half-empty (pressurized) gas cylinder to the supplier

Let’s say you have some half-empty pressurized gas cylinders that you wish to return to the supplier. Do you need to manifest them as a hazardous waste because they are reactive (pressurized)?

The answer is: No.

EPA has determined that returning a compressed gas cylinder to the supplier does not constitute disposal on the part of the customer. For most parts, the cylinder itself is the property of the supplier and the customer has no control over what the supplier does with the cylinder and its content once the supplier receives it. So the pressurized cylinder you are returning to the supplier is NOT a RCRA solid waste, according to EPA and therefore it cannot be a hazardous waste.

EPA’s RCRA online document RO14760 states that “returning the cylinder to the supplier does not make the customer a hazardous waste generator.”

Please note that you may still need to ship the pressurized cylinder as a DOT hazardous material.

Why SPCC is not delegated to the states?

As we all know, many federal environmental programs are delegated to the state levels for implementation with oversight from EPA. Such is not the case with the Spill Prevention Control and Countermeasures (SPCC).

When Congress passed the Clean Water Act in 1972, it directed the President to develop a National Contingency Plan. Under Section 311(j)(1) of the Act, the President is directed to est”lish procedures, methods,a nd equipment and other requirements for equipment ot prevent discharge of oil and hazardous substances from vessels and from onshore facilities…”…..

The President is specifically authorized to delegate the administration of Section 311 of the Clean Water Act to “the heads of those Federal departments, agencies, and instrumentalities which he determines to be appropriate”.  There is no mention of any authority to delegate to state agencies.

Some state governments have enacted state laws that require their industries to have spill prevention plans that are the same as those spelled out in the SPCC regulations. California is one of these states. So if an inspector from one of the California state regional water quality control boards finds that you don’t have a SPCC plan, the agency can cite you  for violating the state law - but not the federal law.

Only an EPA inspector can cite you for SPCC violations.