MACT Hammer

What's New

Natural Resources Defense Council (NRDC) has a request pending for administrative reconsideration of the Startup, Shutdown, Malfunctions (SSM) provisions of the MACT (Maximum Achievable Control Technology) Hammer rule, and EPA now anticipates granting this request. We do not have a timetable for EPA's action.

Last year the Sierra Club requested a stay on the implementation of the MACT hammer dates and the SSM provisions of the final rule (General Provisions Section 112(j)). The Court did not grant the stay and since then EPA has met all of the MACT deadlines. Therefore, required filing of a Part 2 permits (MACT Hammer) is no longer an issue. However, the Sierra Club still objects to the SSM provisions of the final rule. Specifically the public availability portion which does not require routine submission of the plans based on a citizen’s request. Instead, the citizen must make the request through the permitting authority.

NPRA Position

NPRA generally supports the final rule published on May 30, 2003 (68 FR 32586), which is based on the settlement of the lawsuit filed by the Sierra Club. The final rule provides a new schedule for submission of the outstanding MACT regulations and the Part 2 applications. It also clarifies the process to provide Startup, Shutdown, Malfunction (SSM) plans to the public.

Issue Brief

The Clean Air Act, Section 112(j), provides that beginning 18 months after the date on which EPA misses the deadline for issuing Section 112(d) MACT standards for a source category, a source in that category must submit an application to the state agency for a case-by-case MACT determination to be included in its Title V permit. Section 112(j) is referred to as the "MACT hammer" and the date 18 months after the deadline for issuing a standard is referred to as the "hammer date." On November 15, 2000, EPA missed the deadline for approximately 60 MACT standards, thus establishing a hammer date of May 15, 2002.

On September 11, 2003, NPRA, as part of an industry coalition, filed its opposition to the motion filed by the Sierra Club on August 26 to stay part of the 112(j) MACT Hammer rule. NPRA also filed a motion in opposition to the Sierra Club’s lawsuit opposing the final 112(j) MACT Hammer rule. Because EPA has already met the deadlines on the other MACTs specified in the final rule, the Sierra Club’s motion for a stay would only affect the four MACT regulations due in February 2004 and one due in 2005. Further, the Sierra Club is objecting to the deadlines that it agreed to with EPA and which formed the basis for the schedule in the final rule.

On April 5, 2002, EPA finalized revisions to its Section 112(j) regulations which provided that sources in categories with a May 15, 2002, hammer date would file a Part 1 application on May 15, 2002, and a Part 2 application 24 months later. The Part 1 application required an identification of the source, its location and the category for which EPA had missed the deadline. The Part 2 application is far more complex and requires information on the equipment at the facility and the associated hazardous air pollutant emissions.

The Sierra Club filed a lawsuit challenging EPA's April 5th final rule because it provided 24 months between the Part 1 and Part 2 applications. EPA entered into settlement agreement discussions with Sierra Club and lodged a proposed settlement with the Court of Appeals for the D.C. Circuit. The settlement agreement would require EPA to propose shortening the time period between the Part 1 and Part 2 applications from 24 to 12 months. Further, the settlement made changes to the SSM procedures of the General Provisions.

NPRA and other industries were opposed to the shortening of the time period between the Part 1 and Part 2 applications and changes to the SSM procedures. The Part 2 application which, under current regulations, requires a specification of the emission units in the source category and description of the Hazardous Air Pollutants (HAPs) being emitted, could not be completed by the May 15, 2002, deadline. Further EPA stated in the final 112(j) rule that 80,000 sources would need to file a Part 2 application. Some estimates put the cost of compiling each application to be between $10,000 and $50,000. For 80,000 sources, this would make the cost of the Part 2 application exceed $800 million to $4 billion. This does not include the costs to the state for development of applications, their receipt, and their evaluation for completeness. The resources used to complete the Part 2 would be wasted because the material in the Part 2 applications would, for the most part, not be used by the states since the date of the MACT federal rule for these sources is so close to promulgation. NPRA and other industries opposed changes to the SSM because these changes were made without opportunity to provide comments by all stakeholders as required by the Adminstrative Procedures Act.

On May 30, 2003, EPA published the final rule (68 FR 32586) on National Emission Standards for Hazardous Air Pollutants for Source (NESHAPs) Categories: General Provisions; and Requirements for Control Technology Determinations for Major Sources in Accordance with Clean Air Section, Section 112(g) and 112(j). This final rule amends a final rule published on April 5, 2002 (67 FR 16582). It provided a more flexible timetable for 112(j) Part 2 applications in response to the case-by-case "MACT Hammer" requirements in the Clean Air Act.

The final rule establishes a new timetable for the submission of the 112(j) Part 2 applications. It was based on a revised EPA schedule for completing NESHAPs (MACTs) for the nearly 60 remaining sources. The final rule makes several changes to the General Provisions rule that establishes general procedures for preparation, maintenance, and revision of SSM plans. NPRA provided comments to EPA.