The EPA released a memo in 2017 changing the way the agency treats the National Emissions Standards for Hazardous Air Pollutants (NESHAP) applicability, which has added a new layer of complexity to navigating federal regulations. Before the new interpretation, the policy stood as once a NESHAP applied to your business there was no way to get out from under it unless you could prove the emissions source was permanently gone. So, unless you went out of business or removed a significant portion of your process, you would always be subject to the NESHAP.
The updated regulation offers opportunities to get out from under the rule, but it may not be the best course of action for your business.
The new regulation necessitates an air permit change application process to remove the NESHAP requirement. Under the law, if your Potential to Emit (PTE) is greater than 10 tons per year for a single Hazardous Air Pollutant (HAP) or 25 tons for a combination of HAPs, you are subject to a NESHAP. If you are able to reduce the actual emissions to less than 10 and 25, then you can “Limit Out” of the NESHAP.
However, that action may trigger regulation under another rule that may be more difficult to comply with. For example, when you first filed for a permit, your emissions were such that you became subject to a NESHAP, which you have been complying with. If your emissions hadn’t required a NESHAP, you would have most likely had to comply with Rule 8-1-6 which would have required you to perform a Best Available Control Technology (BACT) determination. A new BACT determination might be more stringent than the NESHAP you are already subject to.
Other Areas of Consideration Under the New NESHAP Regulations
The EPA NESHAP Memorandum is a guidance document, which could be subject to legal action contesting it. Therefore, we recommend that HAP sources request removal of a NESHAP through a separate permit request and not through a renewal. That way if the EPA’s policy is overturned or stayed, the renewal permit won’t be potentially void or contestable, allowing your operating permit to continue.
If you ask to be let out of the regular NESHAP, you may end up being subject to an Area NESHAP for PTEs that are less than the 10 and 25. These new standards could end up being more stringent.
Some units or facilities are subject to NESHAP based on factors other than PTE, such as SIC code, type of product produced, or type of equipment used. Make sure to verify that a decrease in emissions is adequate cause to remove existing NESHAP requirements from an air permit.
Managing the new NESHAP rules is not as simple as limiting out and you are done. There are many more complexities that arise once the requirement is lifted. Reach out to DECA Environmental to help you assess the benefits and pitfalls of altering your NESHAP requirements. Send us an email, or give us a call at 317-575-0095.
