July 14, 2020

Enforcement Alert Raises Profile of RCRA’s Air Standards

Reducing toxic air emissions at hazardous waste facilities has been one of EPA’s national compliance initiatives (NCIs) for the better part of a decade. This NCI focuses on compliance with RCRA’s Parts 264/265, Subparts AA, BB, and CC air emission standards at treatment, storage, and disposal facilities and large quantity generators. EPA has issued a plethora of guidance on this initiative, which we have written about previously in 2018 and 2019. In June 2020, the agency published additional information in the form of an enforcement alert, entitled “National Compliance Initiative Focus on RCRA Air Emissions.” Noting the hundreds of RCRA air regulation violations discovered during inspections from 2017–2019, EPA’s alert discusses monitoring, exemptions, specific findings, and best practices.

RCRA/CAA Interface

It is not unusual for a regulatory overlap to exist between multiple environmental programs, and the RCRA air emission standards are a prime example. The RCRA statute requires that its implementing regulations be written to avoid duplication with CAA standards. As such, there are exemptions from Subparts AA, BB, and CC when complying with equivalent standards under the CAA. Under Subparts AA and CC, an owner/operate may certify their equipment is compliant with the applicable CAA regulation codified in 40 CFR Part 60, 61, or 63. By demonstrating compliance with CAA regulations, the facility is exempt from the equivalent RCRA regulations. [§§264.1030(e)/265.1030(d) for Subpart AA, §§264/265.1080(b)(7) for Subpart CC] The exemption from Subpart BB is worded differently but is functionally equivalent. An owner/operator may elect to document compliance with the relevant CAA regulation codified in 40 CFR Part 60, 61, or 63. [§§264/265.1064(m)]

It is possible a facility could make use of the above exemptions but then later lose the exemptions if its status under the CAA changes. This can occur when a facility, previously classified as a major source of hazardous air pollutants, is reclassified as an area (minor) source. A complete discussion of this concept is beyond the scope of this article. However, in EPA’s alert, the agency said:

“A major source that takes an enforceable limit on its potential to emit hazardous air pollutants (HAPs) and takes measures to bring its HAP emissions below major source thresholds (i.e., 10 tons per year (tpy) of any single HAP or 25 tpy of any combination of HAPs) becomes an area (minor) source. It is important to note that if a facility was previously exempt from RCRA air requirements through a CAA major source permit but then secures a CAA permit change to become an area source, the facility should evaluate whether any previously RCRA-exempt units would now be required to be covered under its RCRA permit. Facilities should work closely with their permitting authorities to ensure that all units subject to RCRA air regulations are covered by either their RCRA permit or by their CAA permit.”

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Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.