Living with the CAAA

• By Stephen H. King, PE
• Oct 01, 2001

The Clean Air Act (CAA) was originally passed by the U.S. Congress in 1970 and subsequently revised in 1977 for the purpose of protecting human health and the environment.

In 1990, then-President George Bush signed the Clean Air Act Amendments (CAAA). The far-reaching impacts of the 1990 amendments added significantly to the regulatory challenges already faced by the chemical industry. The most striking implication of the 1990 CAAA may be the increased emphasis on enforcement issues and penalties for noncompliance. In addition, the financial impact of this legislation to the chemical industry has been significant.

Now that more than a decade has passed since the milestone Clean Air Act Amendments, it seems appropriate for the chemical industry to step back and review the amendments' impact. In order to achieve and manage compliance with the 1990 CAAA, chemical facilities must first understand the provisions.

An important provision of the original CAA was Title I, which required U.S. Environmental Protection Agency (EPA) to establish acceptable levels for six criteria pollutants: ozone, carbon monoxide (CO), particulate matter, sulfur dioxide (SO₂), nitrogen dioxide and lead. The term, "criteria pollutants" derives from the requirement that EPA must describe the characteristics and potential health and welfare effects of these pollutants. It is on the basis of the criteria that standards are set or revised. To support attainment of these acceptable levels, states with areas classified as non-attainment are required to implement a State Implementation Plan (SIP), designed to bring the facility into attainment with the National Ambient Air Quality Standards (NAAQS) by the statutory deadline. These SIPs usually detail the control technologies used to reach attainment.

Title III introduced new control requirements for listed air toxic source categories and created a schedule for EPA to develop and promulgate these Maximum Achievable Control Technology (MACT) standards. The first major regulation promulgated under Title III was the Hazardous Organic National Emission Standard for Hazardous Air Pollutants (HON), published in the Federal Register on April 22, 1994. Subsequent MACT standards included the Group I and Group IV Polymers and Resins MACTs, Polyether Polyols MACT, Pesticide Active Ingredient MACT and Pharmaceutical MACT. Others such as the Miscellaneous Organic National Emission Standard for Hazardous Air Pollutants (MON) and the Ethylene, Carbon Black and Spandex MACT have yet to be promulgated. The MACT standards have placed a significant regulatory burden on the chemical industry. However, most subsequent standards have been based on the HON, which allows facilities to use a similar framework for complying with these new MACT requirements.

In addition to the promulgation of MACT standards, Title III also required facilities to prepare for potential accidental releases in the form of a Risk Management Plan (RMP). Existing facilities subject to the requirements of RMP were due to establish these plans by June 21, 1999.

Title IV of the 1990 CAAA established allowance trading, permitting and monitoring provisions for sources of SO₂ and oxides of nitrogen (NO_X). The power industry bears the brunt of these provisions, but industrial boilers that use more than one third of their British thermal units (Btus) to generate electricity may also be subject to Title IV regulations.

Title V initiated a new federally enforceable operating permit program to be administered by the states. This program required all significant sources of air pollution to list emission units subject to federally applicable standards and to certify compliance with these standards. The most notable component of this program was the shift of responsibility for ensuring compliance. Past programs assigned the burden to the regulatory agency to detect noncompliance. Title V required that facility managers certify compliance. Because of this shift in the compliance demonstration burden, facilities are spending significant resources to enhance compliance and facilitate their demonstration of such compliance.

Title VI of the 1990 CAAA initiated a program to phase out production and consumption of chlorinated hydrocarbons known as ozone-depleting substances (ODS). Although the bulk of the requirements for the chemical industry apply to the use of ODS for process or comfort cooling systems, Title VI may also apply to the use of ODS in chemical processes or to the production of ODS for sale. The chemical industry has responded to this requirement by utilizing alternative chemicals that do not contribute to ozone depletion.

In addition to the shift from regulators detecting noncompliance to facility managers certifying compliance, the 1990 CAAA contained several other provisions related to enforcement of clean air legislation. The amendments expanded federal authority for issuing both civil and criminal penalties for noncompliance. In addition, the "bounty hunter" provisions of the 1990 CAAA allowed agencies to provide financial rewards to informants who provide evidence of noncompliance. However, these bounty hunter provisions have rarely been applied.

Once a chemical manufacturing facility understands the applicability of the 1990 CAAA, it can begin to establish a comprehensive strategy for complying with its provisions. The following concepts can assist in the development of a compliance management plan:

• Review overlapping requirements;
• Understand historical activity;
• Assess existing controls and pursue operational improvements;
• Evaluate useful life of the equipment or facility;
• Assess impacts of emissions control options; and
• Anticipate major changes at the facility.

Facilities must not assume that complying with one of the 1990 CAAA regulations will fulfill all the applicable federal, state or local environmental requirements. Federal regulations may overlap, requiring careful analysis and planning on the part of facility managers. In addition, it is common to find a facility subject to state and local regulatory requirements that are similar but not necessarily identical to the federal regulations. For example, a chemical plant may be subject to Volatile Organic Compound (VOC) emission controls required by the state for the purpose of achieving compliance with the ozone NAAQS. The same plant may also be subject to the HON, which may have slightly different control requirements than the state for the purpose of reducing Hazardous Air Pollutant (HAP) emissions. Facility owners or operators cannot choose which regulations they prefer but must comply with the most stringent of both the federal and state requirements.

In order to accurately plan a journey, it is important to know where you have been. To draw a road map for compliance with the 1990 CAAA, it is critical to know the applicable regulatory requirements. However, knowing the desired end result is only part of the plan. Much can be gained by becoming familiar with the historical activity of the plant or the historical operating conditions of the emission control equipment. Today it is the exception -- rather than the rule -- that environmental professionals spend their careers learning the detailed operating history of a single facility. However, it is important that the environmental staff knows what decisions have been made in the past and understands the background for these decisions. To fully understand historical activities at the facility, personnel may need to review plant equipment files, review environmental permit files and interview plant operators. Information about the facility's historical activity could prove invaluable in the event that EPA takes enforcement action against the plant.

Before making investments in new emissions control equipment, it is important to assess the effectiveness of existing controls. Then it is possible to develop a game plan for improving efficiency to meet new requirements. If a facility is not operating existing equipment to the maximum efficiency possible, it could be forced to replace existing controls with new equipment to meet regulatory requirements. The facility might, however, be able to make improvements in existing equipment with a minimal outlay of capital.

Some facilities may find that the useful life of their existing equipment may not justify the continued production of regulated emissions. In addition, it is possible that market conditions may no longer support continued production of some chemical products. Evaluation of the remaining useful life of equipment and production facilities can be a crucial component of the economic evaluation of control options. In most cases, this evaluation will probably support the relatively minor investment in additional controls. However, in some cases an economic evaluation based on the useful life of the facility may determine that it is best to shut down or replace existing equipment or production plants.

In some instances, adding emissions controls for one pollutant may result in an increase in another air pollutant. For example, a flare or incinerator may effectively control emissions of VOCs but may result in an increase in NO_X and CO. Also, facilities might incinerate chlorinated VOCs, but this process releases hydrogen chloride(HCl) to the atmosphere. In addition, if a facility is considering the addition of Selective Catalytic Reduction (SCR) to control NO_X emissions, it must consider the impact of ammonia emissions from the SCR. In any event, it is critical that the owner or operator of the facility considers the impacts of these emission control devices or methods before making a final decision because adding emissions controls may require permitting action.

Even after environmental personnel have covered all the regulatory bases, they must also consider the state and federal permitting requirements that may be triggered by changes at their facility, including the addition of control equipment as discussed above. Just because a new control device is required to satisfy federal regulations, the facility is not immune to potential enforcement action if it makes these changes without the necessary permit authorizations. Recent New Source Review enforcement actions in the pulp and paper, petroleum refining and power industries have re-emphasized the need for careful assessment of changes at facilities to ensure that they do not trigger a "major modification" without prior authorization. Regardless of the applicable regulatory requirement to add emissions controls, the facility must be evaluated for the applicability of state or federal permitting requirements. As such, it may be necessary to evaluate state guidance for Best Available Control Technology (BACT), federal BACT or Lowest Achievable Emission Rate (LAER) technology, depending on the type and quantity of pollutants emitted.

The 1990 CAAA have far-reaching effects on the compliance efforts of the chemical industry. The emphasis on compliance certification by plant management and the changes to civil and criminal penalties instituted by the 1990 legislation can strike fear in the hearts of senior corporate officials and environmental managers. However, careful analysis of the regulatory requirements of each facility and the formulation of a strategic plan for meeting or exceeding the emissions controls specified by these regulations is not only feasible but achievable.

This article originally appeared in the October 2001 issue of Environmental Protection, Vol. 12, No. 10, p. 44.

This article originally appeared in the 10/01/2001 issue of Environmental Protection.