HAP Permitting

The EPA has promulgated or proposed MACT standards for certain new and existing source categories that emit the listed 189 HAPs. The Act requires new and modified major sources of HAPs to comply with MACT standards on a case-by-case basis and includes provisions to address pre-construction permitting of such facilities.

In the case of construction or reconstruction of a major source of HAPs, case-by-case MACT is immediately triggered. In the case of a modification of a major source of HAPs, case-by-case MACT standards are only triggered if the modification will increase emissions over a de minimis threshold level. Additional analysis on the part of a facility will be necessary to determine whether the emissions from the modification triggers case-by-case MACT. The facility also has the opportunity to "net" out of MACT requirements if it is able to offset its modification's emissions elsewhere in the facility, and thereby not exceed the de minimis threshold. If the facility has determined that the new construction or modification will trigger case-by-case MACT, however, it will need to negotiate a standard with the permitting agency.

In negotiating a MACT standard, the owner or operator of the facility will need to present what it considers should be MACT for its facility to the state permitting agency. Determining this technology-based standard will require analysis of the emissions sources, uncontrolled emissions, controlled emissions, and any applicable control technologies.

The state may request EPA oversight during the negotiation of a case-by-case MACT standard. Once a state permitting agency is prepared to propose a MACT standard for a new source or modification, the state must provide an opportunity for a public hearing and comment. After addressing any comments, the state agency may then send the proposed MACT standard to the EPA for review. If the EPA finds that the standard does not meet the requirements of the Act, it will disapprove the application and the state will need to amend the proposed standard. If EPA approves the MACT standard, the state may then promulgate it.

This permit negotiation, review, and approval process is required for each case-by-case MACT standard and is separate from other CAAA permit application and review requirements. Facilities may, however, have the opportunity to "merge" these permits in order to streamline the permitting process.

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