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Environmental regulatory update
REGULATORY REQUIREMENTS ENVIRONMENTAL REGULATORY UPDATE by William D. Hayes, Esq. Vorys, Sater, Seymour and Pease LLp, Cincinnati
The year 1998 saw continued development and implementation of environmental regulations affecting the metal-finishing industries. While the majority of matters involved the Clean Air Act, other environmental media did not escape attention. This regulatory summary focuses on several developments both in the past year and those expected for 1999 that directly effect those engaged in the metal-finishing industries.
CLEAN AIR ACT Revisions to Federal Ozone and Particulate Standards The U.S. EPA issued final revised National Ambient Air Quality Standards (NAAQS) for ground-level ozone and particulate matter on July 18, 1997. These standards became effective on September 16, 1997. The NAAQS set national goals for acceptable concentrations of certain air pollutants in the ambient air, While the NAAQS do not set specific emission standards on industry, states that have areas that do not meet the NAAQS are required to develop plans to bring the areas into compliance within specific time periods. These state plans can include additional restrictions on industrial emissions. When the particulate standard was last revised in 1987, a change from total suspended particulate (TSP) to PM]() was made. PM lOis particulate matter ]() microns or less in size. This represents a narrower range of fine particulate than TSP and is intended to address the particulate that has the potential to cause the most harm when inhaled. There is currently a 24-hour PM I0 standard set at 150 ug/nr' (micrograms per cubic meter) and an annual standard set at 50 iLg/nr'. If there is no more than one daily exceedance a year at a single monitoring site, the standard is met: however, additional research has reportedly shown that particles even smaller than PM 10 have the most potential for harm because they get inhaled deeper into the lungs. In response the U.S. EPA has revised the standard to regulate particulate matter of 2.5 iLg/nr'. The new annual PM2.5 standard is set at 15 iLg/m' and the new 24-hour standard is 65 iLg/m'With regard to PM, states are allowed up to two years to submit a monitoring plan and have the monitors in place and operating. States will have another three years to collect data before areas must be designated as meeting or not meeting the standard. States will then develop control plans to bring those areas into compliance no later than 2015. The ozone standard is similar to PM2.5 and other NAAQS in that it does not directly
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apply to facilities. The current standard for ozone is 12 parts per million (ppm), which can only be exceeded three times in any three-year period at anyone monitoring site. The new ozone standard is an eight-hour standard rather than the previous three-hour standard. The fourth highest maximum reading will be taken at each monitor for each of three years and then averaged. If the average is greater than 0.80 ppm, then the area is in violation of the ozone standard. The U.S. EPA will likely use monitoring data for 1997 to 1999 to make determinations of what areas are in noncompliance and make designations in 2000. Areas in noncompliance will have until 2012 to meet the standard.
Accidental Release Prevention Requirements In May 1996 the U.S. EPA finally issued the Accidental Release Prevention rule under Section 112(r) of the Clean Air Act. The rule applies to all facilities with processes that contain more than a threshold quantity of a listed regulated substance. In January 1994 the U.S. EPA issued the final list of 139 regulated substances: 77 acutely toxic substances, 63 flammable gases and volatile liquids, and Division 1.1 high explosives as listed by the Department of Transportation. The final rule lists threshold quantities for toxics ranging from 500 to 20,000 lb. For listed flammables the threshold quantity is 10,000 lb. Many facilities are subject to the rule because of propane being a listed regulated substance. The rules regulate processes that contain more than the threshold quantity of a listed substance. Process operations mean manufacturing, storing, distribution, handling, or using the substance in any way. In certain instances substances in tanks closely located must be considered together, as well as having associated piping. Processes are divided into three categories based on (I) potential for off-site consequences associated with a worst-case accidental release; (2) accident history; or (3) compliance with the prevention requirements under OSHA's process safety management standard. While the rule is similar to OSHA's process safety management rule, the CAA 112(r) rule is focused on off-site rather than on-site consequences of an accidental release. Under the rule processes that have no potential impact on the public in the case of a release will have minimal obligations. Other facilities, however, will have to implement a risk management program that includes detailed requirements for hazard assessment, accident prevention, and emergency response. For existing sources risk management plans are required to be submitted no later than June 21, 1999. The rule requires that facilities evaluate a range of possible releases and determine a "worst-case" release for each substance. By worst-case the rule means that there would be a release of the largest possible quantity of a regulated substance from a vessel or process line failure, taking into account administrative controls and passive mitigation systems. Facilities are also required to analyze other scenarios than worst-case and plan accordingly, Substantial confidentiality and community relations issues must be considered. At this stage facilities should have reviewed the list of substances and associated thresholds. If listed regulated substances are present above the thresholds, facilities should be well into the stage of evaluating other storage or usage options. If none exist these facilities should have taken the initial steps in preparing a plan so as to comply with the rule by June 1999. Time is running out for facilities to implement mitigation programs to minimize a release, which can be reflected in the final risk management plan. The list of regulated substances can be found at 59 Federal Register 4478 (January 31, 1994). The final risk management rules are located at 61 Federal Register 31688 (June 20, 1996).
Architectural and Industrial Maintenance Coatings, Automobile Refinish, and Commercial/Consumer Products and Coatings The U.S. EPA continues to take actions reflective of what is likely to be a growing trend in controlling VOC emissions from coating operations, Instead of regulating certain coating
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activities only through control requirements or emission limits, the U.S. EPA is now focusing on coatings manufacturers. By requiring that coatings or products used for certain activities are all within specified parameters, compliance with a baseline emissions level is assured throughout the industrial application. This activity is part of a larger effort by the U.S. EPA to satisfy Section 183(e) of the Clean Air Act, which requires the U.S. EPA to identify all consumer and commercial products that account for 80% of VOC emissions in ozone nonattainment areas and promulgate regulations within two years of establishing a regulatory schedule for them. Under a rule finalized in September 1998 manufacturers of several kinds of architectural and industrial maintenance coatings will have to significantly reduce the level of VOCs contained in those products. The rule would set VOC limits for 55 categories of coatings including interior and exterior paints, primers and undercoaters, sealers, shellacs, and stains. The final rule provides manufacturers with two options for complying with the VOC limits. The first option allows industry to continue making paints and coatings with high VOC contents provided they pay a fee on the amount of VOC that is above the specified rule limits. The second option allows industry to establish a tonnage exemption that would allow companies to produce a certain amount of product that does not have to meet a VOC content limit. The rule also exempts a number of coating categories, including those manufactured exclusively for sale outside the U.S., those made before the rule deadline, coatings supplied in nonrefillable aerosol containers, and coatings sold in containers with capacities of one liter or less. The U.S. EPA will issue guidance in early 1999 for coatings used for wood finishing. aerospace, and ship building and repair. On September II, 1998, the U.S. EPA finalized a regulation to control VOC emissions from automobile refinish coatings. The rule sets specific VOC content limitations in six categories of automobile refinish coatings (generally classified as primers and topcoats). VOC limits would be met by product reformulation, requiring the use of coatings with VOC contents lower than those already in use. The rule directly affects several large automobile refinish coating manufacturers and importers and approximately 15 smaller coating manufacturers. An automobile refinish coating is a portion of a coating, such as a reducer or thinner. hardener additive. etc., recommended by distributors or end users for automobile refinishing. Exempt are those coatings contained in nonrefillable aerosol cans and those manufactured for use by original equipment manufacturers for assembly line coating operations. The U.S. EPA also has finalized a rule that will regulate the VOC content of commercial and consumer products including surface coatings. The new standards establish VOC content for 24 categories of household consumer products, ranging from engine degreasers to floor polish waxes. The rule applies to regulated consumer products manufactured or imported after December 10. 1998. In the case of all three of these rulemakings, the impact will be felt by most metal-finishing operations in potential quality, supply, and cost issues rather than any direct regulatory impact, For those who apply coatings pursuant to customer specifications the rule may also present some issues. The effect of all three of these rules will be felt in 1999. The Architectural and Industrial Coatings rule can be found at 63 Federal Register 48848 (September I\, 1998). The final automobile Refinish Coating rule is found at 6-' Federal Register 48806 (September II, 1998). The final Commercial/Consumer Products rule is at 63 Federal Register 48819 (September 11,1998).
New Source Review Reform 1999 is likely to see action on the long-anticipated New Source Review (NSR) Preconstruction rule changes proposed in 1996. Designed to streamline the preconstruction permitting program, these rules are expected to significantly reduce the number of permitting actions that new or modified sources must go through before commencing construction.
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Among the provisions that would reduce the number of sources that are subject to preconstruction review are new criteria for determining whether a source is subject to the rules based on the new source's actual emissions versus potential emissions. This issue is particularly noteworthy to those facilities who have operated well under permitted limits. Under the existing preconstruction rule a company might emit far below their permit limits and decide to make some changes at the plant, which will increase their emissions but not above those permitted limits; however, if the potential future emissions are above certain levels, even if they will not actually exceed those levels, the facility was subject to preconstruction permit review. The new approach will allow a company to focus on actual emissions after the change versus what they hypothetically could emit. The rule also would apply less restrictive applicability tests to sources that install state-of-the-art control equipment and exempt pollution control projects that substitute less environmentally harmful compounds for ozone-depleting substances. The proposal would also allow sources to establish plant-wide applicability levels, which would allow companies to make changes within the plant without triggering new source review requirements provided the overall limit was not exceeded. This last provision is particularly important to industries such as automobile manufacturing who make quick changes in response to market demands. Many of these facilities operate below permitted levels but are burdened at present with long permitting time frames in which to make changes, even if the overall emissions impact is minimal. The lengthy and complicated rule proposal is found at 61 Federal Register 38250 (July 23, 1996). It is expected to be finalized or reproposed in the summer of 1999.
Maximum Achievable Control Technology (MACT) Standards The Clean Air Act requires that the U.S. EPA evaluate and promulgate regulations requiring control of emissions of hazardous air pollutants (HAPs) from categories of major and area sources. The term major source is defined as any stationary source or group of sources located within a contiguous area and under common control that emits or has the potential to emit 10 tons per year (tpy) of any single HAPor 25 tpy of a combination of HAPs. The U.S. EPA is required to establish MACT standards for over 170 different source categories contained in a list published in 1992. In 1993 the U.S. EPA published a schedule for regulating those source categories. MACT standards must represent the maximum degree of reduction in emissions of HAPs that the U.S. EPA, taking into consideration the cost of achieving such reductions, any nonair quality health and environmental impacts, and energy requirements. determines is achievable for new and existing sources in the calegoll,". These reductions can be achieved through a variety of methods including control requirements, raw material switches, work practice standards, and process adjustments. For new sources MACT will be equivalent to the best controlled existing source. For existing sources MACT will represent the average emission limitation achieved by the best performing 12% of existing sources or, if the category has fewer than 30 sources, by the average emission limitation achieved by the best performing live sources. There are a large number of source categories that include metal-finishing operations. A number of MACT standards have already been issued or proposed for some of these categories including Hard and Decorative Chromium Electroplating and Chromium Anodizing (60 Federal Register 4948, 1-25-95); Aerospace Manufacturing and Rework Facilities (60 Federal Register 45948,9-1-95); Halogenated Solvent Cleaning (59 Federal Register 61801, 12-2-94); and Shipbuilding and Ship Repair (60 Federal Register 64330,12-15-95). If your operations fall into any of these categories you should be very familiar with the MACT standard and any applicable exemptions. Many MACT standards apply or will apply only to major sources; however, some will also apply to area sources or those sources that have the potential to emit less than the major source thresholds (10 tpy single HAP, 25 tpy combination of HAPs). 1999 will see a continued focus on these smaller, nonmajor sources of HAPs.
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Table I. Deadlines for Upcoming MACT Standards Auto and light-duty truck surface coating Large appliance surface coating Metal furniture surface coating Miscellaneous metal parts and products surface coating Paint stripper users
11115/2000 11115/2000 11115/2000 J 111512000 11115/2000
There are also a number of upcoming MACT standards that will impact the metalfinishing industries. Some of the source categories and the deadlines for imposing MACT are given in Table I. If a facility has operations that might fall within an upcoming MACT standard, the facility should be following the development of the standard. This will allow proactive strategies to either avoid the standard or be properly prepared for it. For instance, if it appeared that the MACT standard would require a switch to a different raw material than presently used, additional lead time in finding substitutes can be gained by not waiting for the standard to be released. The same approach holds true if control equipment will be required. A facility can start developing cost plans now, as well as shopping for the most cost-effective controls, before all others in the industry are doing the same. Budgeting for future controls can have obvious benefits. Finally, following the development of the MACT will assist in the analysis of whether one can restrict facility operations through permit terms in a manner that avoids the standard altogether. U.S. EPA guidance has been issued, which takes the position that once a MACT standard is issued a source cannot then take measures, such as installing controls, in order to avoid the standard. This "once in, always in" issue is controversial but underscores the importance of proactive strategies. 1998 saw continued refinement of MACT standards, with technical clarifications being issued for aerospace coating, wood furniture manufacturing, and chromium electroplating. It is likely 1999 will see continued refinement of the rules and their applicability. The source listing and promulgation schedule for MACT standards is found at 58 Federal Register 63941 (December 3, 1993).
Case-by-Case MACT Standards Under Section 112(g) In June 1998 the case-by-case MACT standard rule became effective. If a facility is constructing a new process or production unit, or reconstructing an existing one, and the process or production unit is by itself a major source of HAPs, the rule may apply. The 112(g) provisions are only applicable to those sources for which a MACT standard has not yet been issued. A facility will have to develop its own source-specific MACT standard. As the rule presents significant potential for new source permitting delays, any facility that is planning significant new construction or reconstruction must factor 112(g) considerations into the permitting process. The final rule is located at 61 Federal Register 68384 (December 27, 1996).
CLEAN WATER ACT New Metal Products and Machinery Discharge Standards In 1995 the U.S. EPA proposed new effluent limitations guidelines for the Metal Products and Machinery (MP&M) industrial category. 60 Federal Register 28210. The category will include facilities that manufacture, rebuild, and maintain finished metal parts, products, or machines including aerospace and aircraft hardware, electronic equipment, mobile industrial equipment, and stationary industrial equipment. These effluent guidelines, as well as others, are required to be developed by the U.S. EPA in accordance with a Court Consent Order, which is part of a settlement of a lawsuit filed by the Natural Resource Defense Council
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(NRDC). At the time the MP&M guidelines were proposed the Agency planned to issue the new effluent limitations in two phases and had established certain industrial sectors, which would be subject to each phase. The Agency received thousands of comments on the proposed MP&M effluent limitations, many of which supported combining the two separate phases. This lead the U.S. EPA to seek an extension of the deadline for adoption established in the Consent Order. In 1997 the U.S. EPA and NRDC agreed on a revised schedule for the adoption of the MP&M guidelines. The revised schedule now calls for the two phases to be merged with the proposed MP&M effluent guidelines to be issued in October 2000 for public comment. The final guidelines are required to be adopted by December 2, 2002. 62 Federal Register 8726 (February 26, 1997). The U.S. EPA is now collecting data on the facilities they had placed into the Phase II rulemaking, and they are updating their Phase I facilities data. In addition, in response to comments on the lack of data in certain areas, the Agency is collecting new data to properly characterize the applicable industrial sectors. The data are being collected through sampling, site visits, and surveys (screening and detailed). A fact sheet reporting on the status of the development of the MP&M effluent guidelines and data collection activities is available from the U.S. EPA by calling Steve Geil, U.S. EPA Project Manager, at 2021260-9817 (E-mail: [email protected]).
U.S. EPA Delays Pretreatment Program Streamlining The U.S. EPA recently announced that it has delayed making certain improvements designed to streamline the pretreatment program. Among the ideas under consideration are: (I) allowing higher pH discharges under certain situations; (2) relaxing standards for dischargers with flows less than 100 gpd; and (3) allowing POTW officials to establish concentration-based standards for low-flow situations. The U.S. EPA has stated that the reason for the delay is the requirement for the agency to demonstrate to the OMB that any additional data submittals will not be a burden to dischargers. These revisions to the pretreatment program could result in benefits to metal finishers that have significantly reduced water usage over the last several years. Pretreaters should look for these streamlining improvements early in 1999.
Great Lakes States Now Implementing the Federal GLI The federal Great Lakes Water Quality Initiative (GLI) was issued by the U.S. EPA in 1995 and established uniform minimum water quality criteria, antidegredation policies, and permitting procedures for the Great Lakes and tributaries to the Great Lakes. 40 C.P.R. Part 132; 60 Federal Register 15366 (March 23, (995). The GLI requires the Great Lakes states to ensure that their water programs are consistent with (meaning as protective as) the federal GLI within two years of the adoption by the U.S. EPA. Because the GLI criteria and procedures are significantly different than the states current rules, the states are required to adopt new rules and regulations to implement the changes. A major consideration for the states is whether to apply the new water quality rules state-wide or just to the Great Lakes drainage basin. None of the Great Lake States were able to adopt their state rules by March 23, 1997, and several are still in the rulemaking process. Currently, Ohio, Michigan, Indiana, and Wisconsin have adopted state GLI implementing rules, and the U.S. EPA is in the process of formally reviewing them for consistency with the GLI. The other four Great Lake States (New York, Illinois, Pennsylvania, and Minnesota) have not adopted rules yet. The GLI requires that if these states do not adopt their own rules, the U.S. EPA will adopt rules for them regulating discharges to the Great Lakes basin. While the U.S. EPA is hoping that all of the remaining states will soon be adopting the required rules, the U.S. EPA has indicated that if a state has
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not substantially completed its rulemaking it will begin the process of adopting rules for that state. New permit limits based on the GLI criteria and permitting procedures will be phased in as existing NPDES permits are renewed or new sources are built. The GLI significantly changed the procedures for developing NPDES permit limits and water quality criteria. The new procedures and criteria may result in more stringent NPDES permit limits on direct dischargers and could require POTWs to modify their pretreatment local limits for industrial indirect dischargers; however, in some cases, permit limits may be less stringent or even dropped due to new criteria and different reasonable potential procedures, which determine whether a permit limit is needed. The GLI and the procedure for requiring states to adopt consistent and uniform standards in the same regional watershed are being studied as a model for use in other areas of the V.S. (e.g., Gulf of Mexico and Chesapeake Bay). U.S. EPA Issues ANPRM on Possible Revisions to Federal Water Quality Standards On July 7, 1998, the U.S. EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) seeking comments on possible revisions to the federal water quality standards program. 63 Federal Register 36742. The purpose of the ANPRM is to assist the V.S. EPA in defining what changes should be proposed at a later date. The agency limited their consideration to five major areas: (I) use designations (e.g., attainability and removal of designations); (2) numeric criteria (e.g., nutrients, sediments, habitat, fish consumption rates, biocriteria, etc.); (3) antidegradation policy (e.g., minimum elements, classification tiers); (4) mixing zones (when to prohibit, low flow concerns, size); and (5) independent applicability policy (e.g., should biocriteria or whole effluent toxicity testing be allowed to override numeric criteria in a weight of the evidence test). Comment Period Closed for the U.S. EPA Storm Water Phase II Rules The U.S. EPA proposed new storm water control rules under the NPDES permitting system for the so-called Phase II Dischargers on January 9, 1998. 63 Federal Register 1535. The comment period closed on April 9, 1998. It is expected that the rules will become final in March 1999 and most likely will cover three facility groups: (I) small municipal separate storm sewer systems (M4Ss), which are systems within an incorporated place or county with fewer than 100,000 in population: (2) small construction sites. which disturb between one and five acres: and (J) industrial facilities V:hClC there is n.: cxpo-un- l,f 1~1t' lfld!.l~t~·l;J.1 :k'li,\,itics and nuucnals to storm water. The no-exposure exemption, if retained by the U.S. EPA in the final rule, would allow facilities to demonstrate that industrial materials, material handling operations, and industrial processes are not exposed to storm water and should not be covered by the rule. A written certification would be needed every three years on a form supplied by the permitting authority. The U.S. EPA also asked for comments on how to define no exposure and certain issues that may arise in the implementation of the no-exposure exemption, such as how to account for storm water from nonindustrial areas (parking lots, roofs, lawns), how to regulate storm water that is increased in flow volume as a result of being installed to achieve no exposure, whether air emissions from roof vents entering storm water systems need to be evaluated, and whether drums or dumpsters should be allowed. In order to check on the status of the rulemaking, eall George Utting at the U.S. EPA at 202/260-5816 (E-mail: [email protected]). Recent Lawsuits Favor Industries Correcting Violations Several court cases have been recently issued in eonnection with citizen suits, which are favorable to industrial dischargers that had corrected violations. The V.S. Supreme Court held in The Steel Company v. Citizens for a Better Environment, 118 S.C!. 1003 (1998) that citizens
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lack standing to bring a suit under the Emergency Protection and Community Right to Know ACT (EPCRA) where a company has corrected the violation (i.e., filing certain reports). Before the suit was filed the company submitted the reports, thus coming into compliance. As a result the citizens lost standing because in order to have standing a plaintiff must have suffered an actual or threatened injury in fact, the injury must have been caused by the defendant's complained of conduct, and the injury must be redressable by the relief sought. These elements of standing are derived from a long line of cases interpreting Article II, section 2 of the U.S. Constitution, which provides that the judicial power of the federal courts extends only to cases and controversies. Shortly thereafter the U.S. Court of Appeals for the Fourth Circuit ruled in the Friends of the Earth v. Laidlaw Environmental Services that citizens may not sue dischargers under the Clean Water Act for civil penalties in cases where violations have already been corrected pursuant to a state enforcement action. 149 F.3d 303 (1998). The court held that the citizen's suit was moot because the only remedy available to the citizen plaintiffs was a civil penalty payable to the U.S. Treasury (not to the citizens' groups), which would not redress any injury the plaintiffs may have suffered. The company had come into compliance after the citizen's complaint was filed and was in compliance for several years at the time of the lower court's final order. The Fourth Circuit applied the U.S. Supreme Court decision in The Steel Company and concluded that all of the elements of standing, including the redressability requirement, must continue to exist at every stage of review, not merely at the time the complaint is filed.
New Laboratory Method Proposed for Mercury The U.S. EPA has proposed a new laboratory analytical method for measuring mercury in wastewater that is significantly more sensitive than the current method. (See, May 26, 1998 Federal Register.i The new method (Method 1631) is able to detect mercury at a level of 0.2 part per trillion as opposed to the present detection level of 200 parts per trillion. Many discharges are worried that the new method will detect mercury in their discharges that was previously below the detection ability of the laboratory equipment, which will result in noncompliance and trigger costly and time-consuming studies to find the source or a reasonable treatment option. In addition elaborate clean rooms will need to be constructed to enable labs to perform the new method and strict precautions will need to be taken for sampling and maintenance of the lab equipment if the new method is adopted. The comment period closed on July 27. 1998, and the U.S. EPA has indicated it plans to issue a final mle early in 1999. Some states have adopted special variances to help discharges remain in compliance. Contact Bill Teilliard at the U.S. EPA, 2021260-7134 for more information.
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The year 1998 saw continued development and implementation of environmental regulations affecting the metal-finishing industries. While the majority of matters involved the Clean Air Act, other environmental media did not escape attention. This regulatory summary focuses on several developments both in the past year and those expected for 1999 that directly effect those engaged in the metal-finishing industries.
CLEAN AIR ACT Revisions to Federal Ozone and Particulate Standards The U.S. EPA issued final revised National Ambient Air Quality Standards (NAAQS) for ground-level ozone and particulate matter on July 18, 1997. These standards became effective on September 16, 1997. The NAAQS set national goals for acceptable concentrations of certain air pollutants in the ambient air, While the NAAQS do not set specific emission standards on industry, states that have areas that do not meet the NAAQS are required to develop plans to bring the areas into compliance within specific time periods. These state plans can include additional restrictions on industrial emissions. When the particulate standard was last revised in 1987, a change from total suspended particulate (TSP) to PM]() was made. PM lOis particulate matter ]() microns or less in size. This represents a narrower range of fine particulate than TSP and is intended to address the particulate that has the potential to cause the most harm when inhaled. There is currently a 24-hour PM I0 standard set at 150 ug/nr' (micrograms per cubic meter) and an annual standard set at 50 iLg/nr'. If there is no more than one daily exceedance a year at a single monitoring site, the standard is met: however, additional research has reportedly shown that particles even smaller than PM 10 have the most potential for harm because they get inhaled deeper into the lungs. In response the U.S. EPA has revised the standard to regulate particulate matter of 2.5 iLg/nr'. The new annual PM2.5 standard is set at 15 iLg/m' and the new 24-hour standard is 65 iLg/m'With regard to PM, states are allowed up to two years to submit a monitoring plan and have the monitors in place and operating. States will have another three years to collect data before areas must be designated as meeting or not meeting the standard. States will then develop control plans to bring those areas into compliance no later than 2015. The ozone standard is similar to PM2.5 and other NAAQS in that it does not directly
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apply to facilities. The current standard for ozone is 12 parts per million (ppm), which can only be exceeded three times in any three-year period at anyone monitoring site. The new ozone standard is an eight-hour standard rather than the previous three-hour standard. The fourth highest maximum reading will be taken at each monitor for each of three years and then averaged. If the average is greater than 0.80 ppm, then the area is in violation of the ozone standard. The U.S. EPA will likely use monitoring data for 1997 to 1999 to make determinations of what areas are in noncompliance and make designations in 2000. Areas in noncompliance will have until 2012 to meet the standard.
Accidental Release Prevention Requirements In May 1996 the U.S. EPA finally issued the Accidental Release Prevention rule under Section 112(r) of the Clean Air Act. The rule applies to all facilities with processes that contain more than a threshold quantity of a listed regulated substance. In January 1994 the U.S. EPA issued the final list of 139 regulated substances: 77 acutely toxic substances, 63 flammable gases and volatile liquids, and Division 1.1 high explosives as listed by the Department of Transportation. The final rule lists threshold quantities for toxics ranging from 500 to 20,000 lb. For listed flammables the threshold quantity is 10,000 lb. Many facilities are subject to the rule because of propane being a listed regulated substance. The rules regulate processes that contain more than the threshold quantity of a listed substance. Process operations mean manufacturing, storing, distribution, handling, or using the substance in any way. In certain instances substances in tanks closely located must be considered together, as well as having associated piping. Processes are divided into three categories based on (I) potential for off-site consequences associated with a worst-case accidental release; (2) accident history; or (3) compliance with the prevention requirements under OSHA's process safety management standard. While the rule is similar to OSHA's process safety management rule, the CAA 112(r) rule is focused on off-site rather than on-site consequences of an accidental release. Under the rule processes that have no potential impact on the public in the case of a release will have minimal obligations. Other facilities, however, will have to implement a risk management program that includes detailed requirements for hazard assessment, accident prevention, and emergency response. For existing sources risk management plans are required to be submitted no later than June 21, 1999. The rule requires that facilities evaluate a range of possible releases and determine a "worst-case" release for each substance. By worst-case the rule means that there would be a release of the largest possible quantity of a regulated substance from a vessel or process line failure, taking into account administrative controls and passive mitigation systems. Facilities are also required to analyze other scenarios than worst-case and plan accordingly, Substantial confidentiality and community relations issues must be considered. At this stage facilities should have reviewed the list of substances and associated thresholds. If listed regulated substances are present above the thresholds, facilities should be well into the stage of evaluating other storage or usage options. If none exist these facilities should have taken the initial steps in preparing a plan so as to comply with the rule by June 1999. Time is running out for facilities to implement mitigation programs to minimize a release, which can be reflected in the final risk management plan. The list of regulated substances can be found at 59 Federal Register 4478 (January 31, 1994). The final risk management rules are located at 61 Federal Register 31688 (June 20, 1996).
Architectural and Industrial Maintenance Coatings, Automobile Refinish, and Commercial/Consumer Products and Coatings The U.S. EPA continues to take actions reflective of what is likely to be a growing trend in controlling VOC emissions from coating operations, Instead of regulating certain coating
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activities only through control requirements or emission limits, the U.S. EPA is now focusing on coatings manufacturers. By requiring that coatings or products used for certain activities are all within specified parameters, compliance with a baseline emissions level is assured throughout the industrial application. This activity is part of a larger effort by the U.S. EPA to satisfy Section 183(e) of the Clean Air Act, which requires the U.S. EPA to identify all consumer and commercial products that account for 80% of VOC emissions in ozone nonattainment areas and promulgate regulations within two years of establishing a regulatory schedule for them. Under a rule finalized in September 1998 manufacturers of several kinds of architectural and industrial maintenance coatings will have to significantly reduce the level of VOCs contained in those products. The rule would set VOC limits for 55 categories of coatings including interior and exterior paints, primers and undercoaters, sealers, shellacs, and stains. The final rule provides manufacturers with two options for complying with the VOC limits. The first option allows industry to continue making paints and coatings with high VOC contents provided they pay a fee on the amount of VOC that is above the specified rule limits. The second option allows industry to establish a tonnage exemption that would allow companies to produce a certain amount of product that does not have to meet a VOC content limit. The rule also exempts a number of coating categories, including those manufactured exclusively for sale outside the U.S., those made before the rule deadline, coatings supplied in nonrefillable aerosol containers, and coatings sold in containers with capacities of one liter or less. The U.S. EPA will issue guidance in early 1999 for coatings used for wood finishing. aerospace, and ship building and repair. On September II, 1998, the U.S. EPA finalized a regulation to control VOC emissions from automobile refinish coatings. The rule sets specific VOC content limitations in six categories of automobile refinish coatings (generally classified as primers and topcoats). VOC limits would be met by product reformulation, requiring the use of coatings with VOC contents lower than those already in use. The rule directly affects several large automobile refinish coating manufacturers and importers and approximately 15 smaller coating manufacturers. An automobile refinish coating is a portion of a coating, such as a reducer or thinner. hardener additive. etc., recommended by distributors or end users for automobile refinishing. Exempt are those coatings contained in nonrefillable aerosol cans and those manufactured for use by original equipment manufacturers for assembly line coating operations. The U.S. EPA also has finalized a rule that will regulate the VOC content of commercial and consumer products including surface coatings. The new standards establish VOC content for 24 categories of household consumer products, ranging from engine degreasers to floor polish waxes. The rule applies to regulated consumer products manufactured or imported after December 10. 1998. In the case of all three of these rulemakings, the impact will be felt by most metal-finishing operations in potential quality, supply, and cost issues rather than any direct regulatory impact, For those who apply coatings pursuant to customer specifications the rule may also present some issues. The effect of all three of these rules will be felt in 1999. The Architectural and Industrial Coatings rule can be found at 63 Federal Register 48848 (September I\, 1998). The final automobile Refinish Coating rule is found at 6-' Federal Register 48806 (September II, 1998). The final Commercial/Consumer Products rule is at 63 Federal Register 48819 (September 11,1998).
New Source Review Reform 1999 is likely to see action on the long-anticipated New Source Review (NSR) Preconstruction rule changes proposed in 1996. Designed to streamline the preconstruction permitting program, these rules are expected to significantly reduce the number of permitting actions that new or modified sources must go through before commencing construction.
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Among the provisions that would reduce the number of sources that are subject to preconstruction review are new criteria for determining whether a source is subject to the rules based on the new source's actual emissions versus potential emissions. This issue is particularly noteworthy to those facilities who have operated well under permitted limits. Under the existing preconstruction rule a company might emit far below their permit limits and decide to make some changes at the plant, which will increase their emissions but not above those permitted limits; however, if the potential future emissions are above certain levels, even if they will not actually exceed those levels, the facility was subject to preconstruction permit review. The new approach will allow a company to focus on actual emissions after the change versus what they hypothetically could emit. The rule also would apply less restrictive applicability tests to sources that install state-of-the-art control equipment and exempt pollution control projects that substitute less environmentally harmful compounds for ozone-depleting substances. The proposal would also allow sources to establish plant-wide applicability levels, which would allow companies to make changes within the plant without triggering new source review requirements provided the overall limit was not exceeded. This last provision is particularly important to industries such as automobile manufacturing who make quick changes in response to market demands. Many of these facilities operate below permitted levels but are burdened at present with long permitting time frames in which to make changes, even if the overall emissions impact is minimal. The lengthy and complicated rule proposal is found at 61 Federal Register 38250 (July 23, 1996). It is expected to be finalized or reproposed in the summer of 1999.
Maximum Achievable Control Technology (MACT) Standards The Clean Air Act requires that the U.S. EPA evaluate and promulgate regulations requiring control of emissions of hazardous air pollutants (HAPs) from categories of major and area sources. The term major source is defined as any stationary source or group of sources located within a contiguous area and under common control that emits or has the potential to emit 10 tons per year (tpy) of any single HAPor 25 tpy of a combination of HAPs. The U.S. EPA is required to establish MACT standards for over 170 different source categories contained in a list published in 1992. In 1993 the U.S. EPA published a schedule for regulating those source categories. MACT standards must represent the maximum degree of reduction in emissions of HAPs that the U.S. EPA, taking into consideration the cost of achieving such reductions, any nonair quality health and environmental impacts, and energy requirements. determines is achievable for new and existing sources in the calegoll,". These reductions can be achieved through a variety of methods including control requirements, raw material switches, work practice standards, and process adjustments. For new sources MACT will be equivalent to the best controlled existing source. For existing sources MACT will represent the average emission limitation achieved by the best performing 12% of existing sources or, if the category has fewer than 30 sources, by the average emission limitation achieved by the best performing live sources. There are a large number of source categories that include metal-finishing operations. A number of MACT standards have already been issued or proposed for some of these categories including Hard and Decorative Chromium Electroplating and Chromium Anodizing (60 Federal Register 4948, 1-25-95); Aerospace Manufacturing and Rework Facilities (60 Federal Register 45948,9-1-95); Halogenated Solvent Cleaning (59 Federal Register 61801, 12-2-94); and Shipbuilding and Ship Repair (60 Federal Register 64330,12-15-95). If your operations fall into any of these categories you should be very familiar with the MACT standard and any applicable exemptions. Many MACT standards apply or will apply only to major sources; however, some will also apply to area sources or those sources that have the potential to emit less than the major source thresholds (10 tpy single HAP, 25 tpy combination of HAPs). 1999 will see a continued focus on these smaller, nonmajor sources of HAPs.
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Table I. Deadlines for Upcoming MACT Standards Auto and light-duty truck surface coating Large appliance surface coating Metal furniture surface coating Miscellaneous metal parts and products surface coating Paint stripper users
11115/2000 11115/2000 11115/2000 J 111512000 11115/2000
There are also a number of upcoming MACT standards that will impact the metalfinishing industries. Some of the source categories and the deadlines for imposing MACT are given in Table I. If a facility has operations that might fall within an upcoming MACT standard, the facility should be following the development of the standard. This will allow proactive strategies to either avoid the standard or be properly prepared for it. For instance, if it appeared that the MACT standard would require a switch to a different raw material than presently used, additional lead time in finding substitutes can be gained by not waiting for the standard to be released. The same approach holds true if control equipment will be required. A facility can start developing cost plans now, as well as shopping for the most cost-effective controls, before all others in the industry are doing the same. Budgeting for future controls can have obvious benefits. Finally, following the development of the MACT will assist in the analysis of whether one can restrict facility operations through permit terms in a manner that avoids the standard altogether. U.S. EPA guidance has been issued, which takes the position that once a MACT standard is issued a source cannot then take measures, such as installing controls, in order to avoid the standard. This "once in, always in" issue is controversial but underscores the importance of proactive strategies. 1998 saw continued refinement of MACT standards, with technical clarifications being issued for aerospace coating, wood furniture manufacturing, and chromium electroplating. It is likely 1999 will see continued refinement of the rules and their applicability. The source listing and promulgation schedule for MACT standards is found at 58 Federal Register 63941 (December 3, 1993).
Case-by-Case MACT Standards Under Section 112(g) In June 1998 the case-by-case MACT standard rule became effective. If a facility is constructing a new process or production unit, or reconstructing an existing one, and the process or production unit is by itself a major source of HAPs, the rule may apply. The 112(g) provisions are only applicable to those sources for which a MACT standard has not yet been issued. A facility will have to develop its own source-specific MACT standard. As the rule presents significant potential for new source permitting delays, any facility that is planning significant new construction or reconstruction must factor 112(g) considerations into the permitting process. The final rule is located at 61 Federal Register 68384 (December 27, 1996).
CLEAN WATER ACT New Metal Products and Machinery Discharge Standards In 1995 the U.S. EPA proposed new effluent limitations guidelines for the Metal Products and Machinery (MP&M) industrial category. 60 Federal Register 28210. The category will include facilities that manufacture, rebuild, and maintain finished metal parts, products, or machines including aerospace and aircraft hardware, electronic equipment, mobile industrial equipment, and stationary industrial equipment. These effluent guidelines, as well as others, are required to be developed by the U.S. EPA in accordance with a Court Consent Order, which is part of a settlement of a lawsuit filed by the Natural Resource Defense Council
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(NRDC). At the time the MP&M guidelines were proposed the Agency planned to issue the new effluent limitations in two phases and had established certain industrial sectors, which would be subject to each phase. The Agency received thousands of comments on the proposed MP&M effluent limitations, many of which supported combining the two separate phases. This lead the U.S. EPA to seek an extension of the deadline for adoption established in the Consent Order. In 1997 the U.S. EPA and NRDC agreed on a revised schedule for the adoption of the MP&M guidelines. The revised schedule now calls for the two phases to be merged with the proposed MP&M effluent guidelines to be issued in October 2000 for public comment. The final guidelines are required to be adopted by December 2, 2002. 62 Federal Register 8726 (February 26, 1997). The U.S. EPA is now collecting data on the facilities they had placed into the Phase II rulemaking, and they are updating their Phase I facilities data. In addition, in response to comments on the lack of data in certain areas, the Agency is collecting new data to properly characterize the applicable industrial sectors. The data are being collected through sampling, site visits, and surveys (screening and detailed). A fact sheet reporting on the status of the development of the MP&M effluent guidelines and data collection activities is available from the U.S. EPA by calling Steve Geil, U.S. EPA Project Manager, at 2021260-9817 (E-mail: [email protected]).
U.S. EPA Delays Pretreatment Program Streamlining The U.S. EPA recently announced that it has delayed making certain improvements designed to streamline the pretreatment program. Among the ideas under consideration are: (I) allowing higher pH discharges under certain situations; (2) relaxing standards for dischargers with flows less than 100 gpd; and (3) allowing POTW officials to establish concentration-based standards for low-flow situations. The U.S. EPA has stated that the reason for the delay is the requirement for the agency to demonstrate to the OMB that any additional data submittals will not be a burden to dischargers. These revisions to the pretreatment program could result in benefits to metal finishers that have significantly reduced water usage over the last several years. Pretreaters should look for these streamlining improvements early in 1999.
Great Lakes States Now Implementing the Federal GLI The federal Great Lakes Water Quality Initiative (GLI) was issued by the U.S. EPA in 1995 and established uniform minimum water quality criteria, antidegredation policies, and permitting procedures for the Great Lakes and tributaries to the Great Lakes. 40 C.P.R. Part 132; 60 Federal Register 15366 (March 23, (995). The GLI requires the Great Lakes states to ensure that their water programs are consistent with (meaning as protective as) the federal GLI within two years of the adoption by the U.S. EPA. Because the GLI criteria and procedures are significantly different than the states current rules, the states are required to adopt new rules and regulations to implement the changes. A major consideration for the states is whether to apply the new water quality rules state-wide or just to the Great Lakes drainage basin. None of the Great Lake States were able to adopt their state rules by March 23, 1997, and several are still in the rulemaking process. Currently, Ohio, Michigan, Indiana, and Wisconsin have adopted state GLI implementing rules, and the U.S. EPA is in the process of formally reviewing them for consistency with the GLI. The other four Great Lake States (New York, Illinois, Pennsylvania, and Minnesota) have not adopted rules yet. The GLI requires that if these states do not adopt their own rules, the U.S. EPA will adopt rules for them regulating discharges to the Great Lakes basin. While the U.S. EPA is hoping that all of the remaining states will soon be adopting the required rules, the U.S. EPA has indicated that if a state has
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not substantially completed its rulemaking it will begin the process of adopting rules for that state. New permit limits based on the GLI criteria and permitting procedures will be phased in as existing NPDES permits are renewed or new sources are built. The GLI significantly changed the procedures for developing NPDES permit limits and water quality criteria. The new procedures and criteria may result in more stringent NPDES permit limits on direct dischargers and could require POTWs to modify their pretreatment local limits for industrial indirect dischargers; however, in some cases, permit limits may be less stringent or even dropped due to new criteria and different reasonable potential procedures, which determine whether a permit limit is needed. The GLI and the procedure for requiring states to adopt consistent and uniform standards in the same regional watershed are being studied as a model for use in other areas of the V.S. (e.g., Gulf of Mexico and Chesapeake Bay). U.S. EPA Issues ANPRM on Possible Revisions to Federal Water Quality Standards On July 7, 1998, the U.S. EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) seeking comments on possible revisions to the federal water quality standards program. 63 Federal Register 36742. The purpose of the ANPRM is to assist the V.S. EPA in defining what changes should be proposed at a later date. The agency limited their consideration to five major areas: (I) use designations (e.g., attainability and removal of designations); (2) numeric criteria (e.g., nutrients, sediments, habitat, fish consumption rates, biocriteria, etc.); (3) antidegradation policy (e.g., minimum elements, classification tiers); (4) mixing zones (when to prohibit, low flow concerns, size); and (5) independent applicability policy (e.g., should biocriteria or whole effluent toxicity testing be allowed to override numeric criteria in a weight of the evidence test). Comment Period Closed for the U.S. EPA Storm Water Phase II Rules The U.S. EPA proposed new storm water control rules under the NPDES permitting system for the so-called Phase II Dischargers on January 9, 1998. 63 Federal Register 1535. The comment period closed on April 9, 1998. It is expected that the rules will become final in March 1999 and most likely will cover three facility groups: (I) small municipal separate storm sewer systems (M4Ss), which are systems within an incorporated place or county with fewer than 100,000 in population: (2) small construction sites. which disturb between one and five acres: and (J) industrial facilities V:hClC there is n.: cxpo-un- l,f 1~1t' lfld!.l~t~·l;J.1 :k'li,\,itics and nuucnals to storm water. The no-exposure exemption, if retained by the U.S. EPA in the final rule, would allow facilities to demonstrate that industrial materials, material handling operations, and industrial processes are not exposed to storm water and should not be covered by the rule. A written certification would be needed every three years on a form supplied by the permitting authority. The U.S. EPA also asked for comments on how to define no exposure and certain issues that may arise in the implementation of the no-exposure exemption, such as how to account for storm water from nonindustrial areas (parking lots, roofs, lawns), how to regulate storm water that is increased in flow volume as a result of being installed to achieve no exposure, whether air emissions from roof vents entering storm water systems need to be evaluated, and whether drums or dumpsters should be allowed. In order to check on the status of the rulemaking, eall George Utting at the U.S. EPA at 202/260-5816 (E-mail: [email protected]). Recent Lawsuits Favor Industries Correcting Violations Several court cases have been recently issued in eonnection with citizen suits, which are favorable to industrial dischargers that had corrected violations. The V.S. Supreme Court held in The Steel Company v. Citizens for a Better Environment, 118 S.C!. 1003 (1998) that citizens
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lack standing to bring a suit under the Emergency Protection and Community Right to Know ACT (EPCRA) where a company has corrected the violation (i.e., filing certain reports). Before the suit was filed the company submitted the reports, thus coming into compliance. As a result the citizens lost standing because in order to have standing a plaintiff must have suffered an actual or threatened injury in fact, the injury must have been caused by the defendant's complained of conduct, and the injury must be redressable by the relief sought. These elements of standing are derived from a long line of cases interpreting Article II, section 2 of the U.S. Constitution, which provides that the judicial power of the federal courts extends only to cases and controversies. Shortly thereafter the U.S. Court of Appeals for the Fourth Circuit ruled in the Friends of the Earth v. Laidlaw Environmental Services that citizens may not sue dischargers under the Clean Water Act for civil penalties in cases where violations have already been corrected pursuant to a state enforcement action. 149 F.3d 303 (1998). The court held that the citizen's suit was moot because the only remedy available to the citizen plaintiffs was a civil penalty payable to the U.S. Treasury (not to the citizens' groups), which would not redress any injury the plaintiffs may have suffered. The company had come into compliance after the citizen's complaint was filed and was in compliance for several years at the time of the lower court's final order. The Fourth Circuit applied the U.S. Supreme Court decision in The Steel Company and concluded that all of the elements of standing, including the redressability requirement, must continue to exist at every stage of review, not merely at the time the complaint is filed.
New Laboratory Method Proposed for Mercury The U.S. EPA has proposed a new laboratory analytical method for measuring mercury in wastewater that is significantly more sensitive than the current method. (See, May 26, 1998 Federal Register.i The new method (Method 1631) is able to detect mercury at a level of 0.2 part per trillion as opposed to the present detection level of 200 parts per trillion. Many discharges are worried that the new method will detect mercury in their discharges that was previously below the detection ability of the laboratory equipment, which will result in noncompliance and trigger costly and time-consuming studies to find the source or a reasonable treatment option. In addition elaborate clean rooms will need to be constructed to enable labs to perform the new method and strict precautions will need to be taken for sampling and maintenance of the lab equipment if the new method is adopted. The comment period closed on July 27. 1998, and the U.S. EPA has indicated it plans to issue a final mle early in 1999. Some states have adopted special variances to help discharges remain in compliance. Contact Bill Teilliard at the U.S. EPA, 2021260-7134 for more information.
Coating and Surface Treatment Systems for Metals by]. Edwards 470 pages $135.00 Selection of the most appropriate coating or other surface treatment is addressed in this comprehensive guide. Part 1 covers 76 industrially important coating types from acrylic polymers through zinc alloys Part II provides an overview of the 19 most important coating and treatment methods with emphasis on the implications for a particular product in terms of its substrate Of shape. Part III offers a guide to coating charactcrristics.
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