New RACT Air Emissions Requirements in the Northeast
September 21, 2016
Depending on the state or states your firm operates in, air regulatory changes may be afoot. Every five years, the Clean Air Act (CAA) requires US EPA to review and, if warranted, revise criteria pollutant standards. Ozone is a criteria pollutant and the ambient standard for that pollutant has been updated most recently in 2008 and again in 2015. Ramifications of the 2008 update are continuing to work their way through the regulatory process. Read further for background, schedule, and ramifications summaries.
Why are there new rules?
The states regulate the precursors to the formation of ozone: nitrogen oxides (NOx) and volatile organic compounds (VOC). The state regulations can take a number of forms, including minor new source review rules for new installations, reasonably available control technology (RACT) for existing sources, and source specific state implementation plan (SIP) revisions.
Once a new ozone standard is set by US EPA, a cascade of activities ensues. First, state and, in some cases local, air regulatory agencies must determine which areas are and are not attaining the standard. For those areas that are not attaining the standard, the severity of the non-attainment must be determined (marginal, moderate, serious, severe). Because of movement of ozone between states (upwind to downwind), many Northeastern states are additionally designated as belonging to the ozone transport region (OTR), regardless of their attainment status.
US EPA headquarters (HQ) publishes implementation rules (draft and final) to ensure progress toward attainment of the new standard. The implementation rules start the process of attainment designation and require that states make submittals of their plans (SIP submittals) for maintaining or achieving the standard. RACT SIP submittals are required of all OTR states regardless of attainment status, and, according to the implementation rule for the 2008 ozone standard, must contain:
Adopted RACT regulations;
A certification, where appropriate, that existing regulatory provisions are RACT; and/or
Negative declarations that there are no sources in the covered geographic area that belong to a specific control techniques guideline (CTG) category.
CTGs are published and CTG categories are determined periodically by USEPA. Example CTG categories can be found at https://www.epa.gov/ozone-pollution/control-techniques-guidelines-and-alternative-control-techniques-documents-reducing and include such common sources of ozone precursors as industrial painting and surface coating activities, storage of organic liquids, a variety of combustion sources, and solvent cleaning. CTGs presumptively define RACT at the Federal level, and if state or local air agencies have CTG category sources within their jurisdiction, and also have obligations under the implementation rules, they must regulate those sources by either adopting RACT rules or making source specific SIP submittals to US EPA. The adopted RACT rules must be at least as stringent as the US EPA CTGs and the US EPA Regions must review and approve those rules.
When are the new rules coming?
Legal (CAA) and regulatory (implementation rule) schedules are established but often not adhered to. The ozone standard is to be reviewed and updated every five years, but seven years ensued between the establishment of the 2008 and 2015 ozone standards. The implementation rule required all non-attainment designations to have been effective by July 20, 2012, all RACT SIPs to have been submitted by July 20, 2014, and implementation of any new rules by January 1, 2017 (January 1st of the fifth year after the effective date of the non-attainment designation). Schedules have slipped on the part of US EPA HQ and Regions as well as on the part of state and local air agencies. Because of the schedule slippage, some non-governmental organizations (NGOs) have brought a CAA citizen suit to compel US EPA “to undertake overdue mandatory duties.”
This downloadable table summarizes the schedule and status of nine states in the Northeast.
What’s being regulated?
Potentially affected sources vary significantly state-by-state. This downloadable table identifies the newly-affected existing sources or source categories.
A LOOK AHEAD – THE 2015 OZONE STANDARD
The rulemaking process will begin again when US EPA HQ publishes the next implementation rule for the 2015 ozone standard. Baring litigation and other delays, the new RACT SIP submittals under the 2015 ozone standard will be due October 1, 2018 for states in the OTR and states with non-attainment areas. Some of the states, for example, Connecticut and Massachusetts, have attempted to anticipate the 2015 requirements. If they are successful in such anticipation and in their current rulemakings, only certifications that existing provisions are RACT will be required. This will allow those states to skip the future revision of the rules; at least until the next ozone standard is promulgated.
MassDEP, 2016. Proposed Amendments to 310 CMR 7.00 Air Pollution Control. Massachusetts Department of Environmental Protection. August 12, 2016.
NJ DEP, 2015. SIP Revisions / 75 ppb 8-Hour Ozone NAAQS RACT Determination, 2011 Periodic Emission Inventory, and 8-Hour Carbon Monoxide NAAQS Maintenance and Monitoring Plan. New Jersey Department of Environmental Protection. June 2015.
NYSDEC, 2014. New York SIP for 8-Hour Ozone RACT. New York State Department of Conservation. Proposed Revision. December 22, 2014.
Pike, Dixon and Brian Rayback, 2014. EPA Approves Maine’s NOx Waiver Request – VOC Waiver Request Still Pending. Pierce Atwood. August 12, 2014.
PA DEP, 2016. Responses To Frequently Asked Questions Final Rulemaking Additional RACT Requirements for Major Sources of NOx and VOCs 25 Pa. Code Chapters 121 and 129 46 Pa. B. 2036. Pennsylvania Department of Environmental Protection, April 23, 2016.
PA DEP, 2016. Additional RACT Requirements for Major Sources of NOx and VOCs: Final Rule (25 Pa. Code Chapters 121 and 129) RACT Overview and Implementation Presentation. Krishnan Ramamurthy, Chief, Division of Permits, June 20, 2016.
US District Court, 2016. Center for Biological Diversity, Center for Environmental Health, and Clean Air Council v Gina McCarthy in her official capacity as Administrator of the USEPA. Case 4:16-cv-04092. US District Court Northern District of California. Filed July 21, 2016.
USEPA, 2007. What Requirements Apply for RACT and RACM Under the 8-Hour NAAQS? 40 Code of Federal Regulations (CFR) Part 51 Subpart X. §51.912. Published November 29, 2005 and amended June 8, 2007.
USEPA, 2013. Implementation of the 2008 NAAQS for Ozone: State Implementation Plan Requirements; Proposed Rule. 78 FR 34178, June 6, 2013.
USEPA, 2015. Final State Implementation Plan (SIP) Requirements Rule for the 2008 Ozone NAAQS. Presented February 26, 2015. USEPA Office of Air & Radiation.
USEPA, 2015. Implementation of the 2008 NAAQS for Ozone: State Implementation Plan Requirements; Final Rule. 80 FR 12264. March 6, 2015.