Aarcher Institute of Environmental Training | Clean Air Compliance Bootcamp

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Advanced Training for Air Professionals

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REGULATORY ALERT !

ARTICLE: TITLE V CERTIFICATION IN THE CROSSHAIRS

This three-day course provides a comprehensive analysis of the Clean Air Act, including the very important Clean Air Amendments of 1990. The course is designed for environmental practitioners who will be responsible for compliance and oversight of air pollution issues at their industrial facility and for those professionals who wish to have a better understanding of the USEPA regulatory matrix regarding air pollution.

Course Topics include:

Comprehensive Overview of the Clean Air Act
History of the Clean Air Act
National Ambient Air Quality Standards Program
New Source Performance Standards and New Source Review
Overview of Title II Programs
Air Toxics Programs (Parts 61 & 63)
Maximum Achievable Control Technology Requirements
Urban Air Toxics and Residual Risk Programs
Title IV Acid Rain Program
Title VI Stratospheric Ozone Protection
Title V Operating Permit Requirements

The New Source Performance Standards Program
By July 2001, EPA had promulgated sixty-five New Source Performance Standard (NSPS) categories covering sources from various industries and more have been added since that time. The NSPS regulations apply to sources with promulgated standards if “the construction or modification” is commenced after publication of a proposed NSPS for that source category. EPA’s NSPS regulations, codified at 40 C.F.R. Part 60, identify three triggers for NSPS applicability: (1) “construction” of a new source; (2) “modification” of an existing source; or (3) “reconstruction” of an existing source. The key aspects of NSPS program applicability, triggers and compliance requirements will be covered in this presentation.

New Source Review Programs:
A Thorough Review of Major Source Permitting under PSD, NA NSR and A Discussion of the NSR Regulatory Reforms
All persons proposing to construct a new “major source” or to make a “major modification” to a major source must obtain a permit prior to commencing construction. This process is called New Source Review (NSR).There are two permitting programs governing NSR: Nonattainment Area (NAA) permitting for sources located in nonattainment areas (CAA Part D) and Prevention of Significant Deterioration (PSD) permitting for attainment and unclassifiable areas (CAA Part C). Both permitting programs are pollutant-specific. The process and requirements for obtaining NSR permits will be covered.

The Regulation of Air Toxics/Hazardous Air Pollutants
This section will address the Part 61 programs for managing asbestos, benzene and certain other emissions, and which facilities and activities are impacted by these requirements. Second, we will extensively review the Part 63 regulatory program, including the 187 listed hazardous air pollutants, the identification of and compliance with applicable general and specific MACT standards, the availability of MACT tools and the jurisdictional triggers for the MACT program. We will then review the residual risk program, including the development of new standards. Third, we will explore the Urban Air Toxics programs, the 33 listed air toxics, and the development of area source standards. Fourth, we will explore the accidental release prevention program requirements embodied in Part 68 and the general duty clause.

The National Ambient Air Quality Standards
A Discussion of the Criteria Pollutants (Ozone, Particulate Matter, Carbon Monoxide, Nitrogen Oxides, Sulfur Dioxide and Lead), with an emphasis on the Ozone Non-Attainment Areas and Implementation Rules, and the PM-10 and PM-2.5 Standards

The State Implementation Plans
How Air sheds (AQCRs) Attain and Maintain Compliance with the NAAQS by Developing Region-Specific Requirements for Air Pollution Control. This segment includes regional case studies.

The Title V Permitting Program
Applicability, Process and Requirements for Title V Major Sources and the Key Issues of Operational Flexibility and Modifications.

Developing the Emissions Inventory
Developing and maintaining an accurate emissions inventory (EI) is probably one of the most important air quality compliance functions of a facility. The EI should take into account all sources of emissions at a facility including combustion sources, particulate sources, fugitive emissions, other miscellaneous sources, and sometimes mobile sources. We will look at example calculations and see how the emission inventory impacts other compliance functions including permitting, modeling, monitoring, and recordkeeping requirements.

The Art of Permitting
We will examine various permitting strategies including reducing emissions to avoid PSD, Title V, or MACT; as well as streamlining potentially conflicting permit conditions to simplify compliance determinations. We will also examine ways to help ensure that the permitting process runs smoothly from pre-application through permit issuance.

Modeling Air Emissions
Air Impact Modeling is often required during the permitting process for new or modified sources when specific modeling significance thresholds are exceeded. This segment will provide an overview of how to determine what pollutants needs to be modeled, how to develop the modeling inventory, what data inputs are required, what models to use, and how to interpret the results.

Determining and Selecting Control Equipment
Selecting the proper control equipment is an important key to ensuring compliance. Potential permit requirements, monitoring requirements, process parameters, and regional attainment status are key considerations in the control equipment selection process. We will look at several types of common pollution control equipment for various processes and pollutants. This segment will focus on case studies that will be expanded in the monitoring requirements segment of the course.

Process and Control Equipment Monitoring Requirements
Federal, State, and local requirements as well as the type of process and the type of control equipment will dictate the requirements for periodic monitoring. We will look at Compliance Assurance Monitoring (CAM) requirements, requirements for stack testing and the routine monitoring of various process parameters. Frequently process parameter monitoring is used as the principal determinant of compliance, so a well-developed monitoring program may be the key to facility compliance.

Recordkeeping for Compliance
Recordkeeping does not need to be an unbearable regulatory burden. We will examine ways of integrating recordkeeping with process monitoring so that data needed for monthly and annual reports is readily available. Many state and local agencies have moved from short-term compliance standards to 12-month rolling totals. Therefore, we will look at ways of setting up a recordkeeping system to ensure compliance with emission limits on a 12-month rolling basis.

Global Warming, the Challenge of Greenhouse Gas Emissions
The objective of the United Nations Framework Convention on Climate Change (UNFCCC) is to stabilize greenhouse gas concentrations in the atmosphere at a level projected to prevent dangerous anthropogenic interference with the climate system. Although the United States is not obligated to comply with the Kyoto protocols, the recent reports from the United Nations and other organizations appear to have persuaded politicians and Boardrooms alike that we must do something to curb carbon emissions. We will review the UNFCCC, emissions inventory data trends, projected impacts of global warming including beach erosion, sea level rise, floods, impacts to coastal wetlands, and climate change. We will also review the recent launch of the Kyoto Protocol Compliance system and related goals for reducing greenhouse emissions worldwide. You will learn about what the States are doing and what it means for business. Our objective is not to persuade anyone as to what the science is or is not telling us. The purpose of this presentation is to get businesses and agencies ready for what appears to be the inevitable changes in laws and regulations related to carbon emissions.

Title VI and the Protection of Stratospheric Ozone
In the troposphere (i.e., near ground level on earth) ozone is a main ingredient of smog which has significant adverse health impacts to humans and which damages crops, trees, and other vegetation. In the stratosphere, ozone works wonders. It protects us from the harmful effects of UV rays from the sun. Anthropogenic substances have caused a significant depletion of ozone in the stratosphere, and if left unabated, ozone depletion has profound implications for every species on this planet. In Title VI of the 1990 amendments to Clean Air Act, Congress required EPA to develop programs to protect the stratospheric ozone layer. Some of the programs we will review include the phase-out of ozone depleting substances, motor vehicle air-conditioning, stationary refrigeration and air conditioning, methyl bromide, the ban on “non-essential products,” product labeling, and federal procurement requirements.

Enforcement and Citizens Suits
We will review the policies, purposes and structures of federal and state enforcement programs including administrative penalties, civil and criminal penalties, penalty guidelines, inspections, administrative hearings, compliance auditing, the credible evidence rule, citizen suits (which may take the place of agency enforcement), and methods for effectively working with and negotiating with enforcement officers.

Toxic Tort and Environmental Litigation
Federal and State enforcement programs provide a multitude of “incentives” to come into compliance with clean air regulations. Completely independent of the statutes and regulations which provide the outline for that structure, however, is the system which has developed under the “common law” in the United States for individuals to seek redress for alleged harm to their person and property premised on allegedly harmful air pollution emissions from industrial operations. We will review this common law “tort” system which exposes owners and operators of facilities to liability for damages based on claims of nuisance, negligence, strict liability, and which, in addition, may expose them to punitive damages.

Credible Evidence Rule, Compliance assurance, & Compliance Certification
Responsible corporate officers put themselves and their companies on the line by filing Title V Compliance Certifications with a state or local permitting agency and the U.S. EPA. These certifications present new obligations – and new risks – for permitted facilities. They require a thorough and complete review of a facility’s compliance status throughout the previous year and, in addition to exposing a company to possible enforcement for any reported noncompliance, they also carry the potential for separate liabilities for false reporting if not properly executed. We will review these certification requirements and the changes to the credible evidence rule related to them.

Inspections and Survival Guide
Surviving an inspection is anything but second nature to most companies. We will highlight some of the most common errors made during agency inspections and identify methods to avoid them.

Effective Use of Counsel and Consultants
The purpose of this section of the program will be to inform the participants of the benefits and structure of, as well as the limitations of, the Attorney-Client Communication Privilege and the work-product doctrine and how these “privileges” work in the context of advising and consulting with clients, experts, and enforcement personnel. We will also explore the purpose and scope of a corporate internal investigation in response to threatened civil or criminal litigation.

Clean Air Developments
EPA periodically pursues enforcement and regulatory initiatives which focus on specialized concerns – the ‘flavor of the day.” We will review recent cases and initiatives involving sulfur and nitrogen oxides emissions, the proposed particle standards, the motor vehicle inspection and maintenance rule, non-methane landfill emissions, and emission limitations and monitoring enforcement.

Clean Air Compliance Bootcamp Instructors:

Rolf R. von Oppenfeld Managing Partner, TESTLaw Practice Group
John L. Watson, PC Ryley Carlock & Applewhite
John A. Van Kirk Clean Air Specialist

Click HERE for more information on these speakers.

[Note: This course can be customized for Aarcher Institute Private Training.]

REGULATORY ALERT !

U.S. Supreme Court rules EPA not required to use an "hourly rate test" in NSR

The Supreme Court gave a boost on Monday, April 2, 2007 to a federal clean air initiative aimed at forcing utilities to install pollution control equipment on aging coal-fired power plants. In a unanimous decision, the justices ruled against Duke Energy Corp. in a lawsuit brought by the Clinton administration, part of a massive enforcement effort targeting more than a dozen utilities. Duke Energy is based in Charlotte , N.C. Most companies settled with the government, but several Clinton-era cases involving more than two dozen power plants in the South and the Midwest are still pending. The remaining suits demand fines for past pollution that if levied in full would run into billions of dollars.

For a Copy of Decision being appealed, click here

Supreme Court Rules Against Bush Administration on Global Warming in April 2, 2007 Decision (5-4 vote)

The Supreme Court ordered the federal government on Monday, April 2, 2007 to take a fresh look at regulating carbon dioxide emissions from cars, a rebuke to Bush administration policy on global warming. The case is Massachusetts v. EPA, 05-1120.

In a 5-4 decision, the court said the Clean Air Act gives the Environmental Protection Agency the authority to regulate the emissions of carbon dioxide and other greenhouse gases from cars. Greenhouse gases are air pollutants under the landmark environmental law, Justice John Paul Stevens said in his majority opinion. The court's four conservative justices — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas — dissented.

New Source Review EPA Annual Emissions Test Receives Boost from Supreme Court in ENVIRONMENTAL DEFENSE et al. v. DUKE ENERGY CORP.

For more information about this, click here.

ARTICLE

Title V Certification in the Crosshairs

Make sure to dot all your i's and cross all your t's when it comes to your annual Title V certification or you may be liable for false reporting. And being "100 percent in compliance" may work against you! That's the advice gleaned from GE attorney Matthew Tanzer at the annual Air & Waste Management Conference and Exhibition held June 22 to June 26 in San Diego.

Title V permits issued under the Clean Air Act contain a requirement for annual certification. The certification must be signed by a responsible official and be based on information formed after "reasonable inquiry." As no definition of "reasonable inquiry" can be found in the Clean Air Act or Title V regulations, industry officials fear the term may be the next industry/agency quarrel along the lines of New Source Review's "routine maintenance."

Tanzer warned that EPA enforcement personnel have publicly indicated that they intend to focus significant resources on Title V certifications. They are more interested in targeting the corporate officer who signs the document and the inherent possibility of a false certification than in traditional Clean Air Act enforcement actions.

According to Tanzer, EPA officials are having a hard time believing that any facility could be "100 percent in compliance" with the myriad and confusing air regulations. So, if you claim that ideal status, you had better be able to back it up with detailed documentation because EPA will likely be knocking on your door. Tanzer contends enforcement folks will think you did not perform a sufficient "reasonable inquiry" into your compliance status and that could potentially be viewed as submitting a false certification. That, according to Tanzer, is the most significant risk associated with a compliance certification.

Tanzer offered some tips to minimize your legal liability related to Title V compliance certifications:

Carefully document actions taken to support a finding of reasonable inquiry.
Explain any noncompliance issues that are reported in the best possible light.
Document that monitoring and recording misses do not necessarily indicate emission exceedances.
Fully explain corrective actions taken in response to deviations.

Tanzer suggests that you err on the side of overdisclosure. If you properly disclose a variety of deviations, with additional information that no emission violation occurred, or details about a malfunction that is not technically a deviation, Tanzer says this makes you a much less attractive enforcement target. It is more likely to be viewed that you carefully reviewed the compliance records, most likely precluding a claim of false certification.