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EPA Addresses MACT Hammer (4/1/10)

On March 30, 2010, EPA proposed several revisions to 40 CFR 63 to address the issue of Section 112(j) (aka "The MACT Hammer") applicability for sources subject to a previously vacated MACT rule. Under Section 112(j), state permitting agencies are required to implement case-by-case MACT determinations for affected units at major sources of HAPs when EPA fails to issue a MACT standard in a timely manner. Section 112(j) was originally designed as a "back stop" to ensure that sources were subject to some form or HAPs regulation in the event that EPA did not develop federal MACT standards in the timeframe provided for in the Clean Air Act.  The applicability and implementation of Section 112(j) has been unclear for many sources because of the recent vacature of several federal MACT rules.

The proposed revisions can be summarized as follows:

  • Section 112(j) applies in the event that a promulgated MACT rule is subsequently vacated. In other words, the vacatur is equivalent to EPA never having issued the rule in the first place.

  • For sources subject to any of the recently vacated MACT rules (i.e. "Boiler MACT"), sources must submit a permit application for case-by-case MACT determination within 90 days of promulgation of the proposed rule changes OR the date by which a permitting authority has requested in writing a Section 112(j) Part 2 permit application (whichever is earlier).

  • In the future, any sources subject to a federal MACT rule that is subsequently vacated must submit a Section 112(j) permit application within 18 months of the vacatur.

  • Part 1 and Part 2 of the Section 112(j) permit application are now combined into a single application.  No other content changes have been made.

  • If a source has been issued a final permit containing a MACT standard under Section 112(j) and EPA subsequently develops a federal standard that is more stringent than the existing standard, then the permitting agency must incorporate the new federal MACT standard in the next Title V permit renewal.

  • If a source has been issued a final permit containing a MACT standard under Section 112(j) and EPA subsequently develops a federal standard that is less stringent than the existing standard, then the permitting agency has the option of retaining the existing standard.  The permitting authority is not required to incorporate any less stringent emissions standard in the Title V permit.

  • If EPA promulgates a new MACT standard after a permit application has been approved (but permit is not finalized), then the permitting authority is not required to change the emissions limitation to reflect the new standard if the permitting authority decides the level of control in the permit is "substantially" as effective as the federal standard.

These proposed revisions were expected and will not require any further action if affected sources have already submitted Parts 1 and 2 of the Section 112(j) application.  Many sources have already submitted complete 112(j) applications although most state agencies have not moved ahead with implementation.  If you are an affected source subject to any of the recently vacated MACT rules and have not submitted BOTH parts of the Section 112(j) permit application, please be aware of the above deadlines for Section 112(j) application submittal.

RMB notes that EPA's latest action does not provide any real clarification for sources that may be affected by any of the recently vacated MACT rules since implementation will ultimately be controlled by the state permitting agency.  It is likely that many state agencies will delay implementation as long as possible until EPA finalizes new MACT rules.

Comments must be received on or before April 29, 2010 on the proposed rule changes.  If a public hearing is requested by April 14, 2010, the comment period will be extended until May 14, 2010.  Please our FTP library for a copy of the Federal Register notice.

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Last Revised: February 06, 2012