Bait and Switch: EPA Requests Comments on Regulation of TCE/PCE Replacement as HAP

The EPA decision to add 1-Bromopropane (“1-BP”) to the list of Hazardous Air Pollutants (“HAP”) has implications that go beyond the addition of another chemical to the HAP list.  Industry received a glimpse of how far the effects of the new HAP listing may extend in a June 11, 2021, Advanced Notice of Proposed Rulemaking (“Advanced Notice”).  86 Fed. Reg. 31225 (June 11, 2021).  Manufacturers, who avoided Title V and maximum achievable control technology (“MACT”) requirements by replacing listed HAPs (like perchloroethylene (“PCE”) and trichloroethylene (“TCE”)) with 1-BP in facility operations, may now want to file comments against broad application of the final rule.           

Clean Air Act Regulation of HAP

When the Clean Air Act (“CAA”) was amended in 1990, Congress provided EPA a list of 189 HAP for which federal Title V Permits would be required.  The HAP list was grounded in years of research and development into health risks posed by air emissions to the community.  Sections 112 (c) and (e) of the CAA direct EPA to “identify and list source categories [of industry] that emit HAP,” then “set [MACT] emissions standards for [each] categor[y] and subcategor[y] [identified by EPA] as expeditiously as practicable.” 86 Fed. Reg. at 31227.

The HAP emissions standards distinguish between sources considered “major” and “area” based on the amount of emissions of a HAP a facility potentially may emit.  Id.; CAA Section 112(d).  A major sources is a stationary source or group of stationary sources located within a contiguous area and under common control, that “emits or has the potential to emit considering controls, in the aggregate, 10 tons per year (TPY) or more of any [HAP] or 25 [TPY] or more of any combination of [HAP].”  Id. Area sources are simply those stationary source categories listed by EPA that are not major sources.

Bait and Switch: Addition of 1-BP to the HAP List

For the first time since Congress passed the HAP program, EPA is adding a new air pollutant to the list of HAP.  On June 18, 2020, EPA granted a petition from environmental groups and added 1-BP to the list of HAP. 85 Fed. Reg. 36851 (June 18, 2020).  This decision cannot be reversed absent a new rulemaking or direction from Congress.

Adding 1-BP to the list of HAP now looks a bit like the classic “bait and switch.”  Since promulgation of the list of HAP, many manufacturers have substituted PCE and TCE with 1-BP in the workplace.  Using an unlisted solvent like 1-BP allowed the facilities to keep plantwide HAP emissions below federal permitting thresholds and below the levels for which MACT controls are necessary on process units. 

Substituting PCE and TCE was not limited to a few business segments.  1-BP is used as a solvent cleaner/degreaser generally, and more directly in --

• Adhesives and adhesive accelerants
• Mold release agents
• Aerosol spray applications

This substitute for PCE and TCE is an intermediate chemical in the production of pharmaceuticals and pesticides, and even dry-cleaners replaced PCE with 1-BP. 

The Advanced Notice states this large-spread use of 1-BP raises “concerns [at EPA] that air emissions associated with 1-BP use could be higher” than previously thought, and, as a result, the chemical use should be addressed as a HAP.  86 Fed. Reg. 31228.  However, listing 1-BP is at odds with a 2016 determination not to restrict use of 1-BP under the Toxic Substances Control Act (“TSCA”) because EPA determined at that time 1-BP “does not pose an unreasonable risk to the environment or general population.”  86 Fed. Reg. at 31228. 

Regulatory Impacts of Listing 1-BP as a HAP

Because EPA made the determination in 2020 to add 1-BP to the list of HAP, the purpose of the Advanced Notice is to obtain information on existing uses and controls for 1-BP.  Courts have held consistently EPA has a “clear statutory obligation to set emission standards for each listed HAP.” See, National Lime Association v. Environmental Protection Agency, 233 F-3d 625, 634 (D.C. Cir. 2000). 

There is no specific deadline for promulgating standards for newly listed HAP under CAA Section 112(b)(1), however.  CAA Section 112(e)(1)(E) requires EPA to promulgate MACT for all source categories for the original list of HAP provided by Congress within ten years of listing, and, as a result, EPA believes this same time frame could apply to a newly listed HAP like 1-BP.  

While precedent suggests EPA likes to phase-in regulatory controls on covered HAP sources, the Advanced Notice suggests listing 1-BP as a HAP will have an immediate regulatory impact.  For example, MACT standards governing solvent use in cleaning or adhesives or surface coatings operations specify HAP emission limits and work practice requirements.  This means using 1-BP as a degreaser or process solvent may affect emissions levels of HAP at the facility and as a result, permit applicability determinations.  Industries using 1-BP as a compliance strategy to avoid major source permitting are required now to include 1-BP in their permit calculations, unless EPA delays inclusion of 1-BP in permit calculations as part of this Advanced Notice.  

A facility could also be required to add MACT controls for HAP emissions from unrelated processes at the plant, which may result in significant costs.  This is because counting 1-BP may cause operation emissions to increase above thresholds for being considered a major source subject to MACT system controls.  The facility would have avoided those costs in the past by using 1-BP.

Finally, certain source category standards under the MACT rules include “work practice requirements” obliging a major source facility to use “low-HAP” or “no HAP” solvents in cleaning or adhesive operations.  A shift to regulate 1-BP as a HAP could cause those facilities to consider replacing cleaning solvents or adhesives, since “no HAP” is defined as containing less than 1% total HAP by weight, and the amount of 1-BP in those chemicals could cause non-compliance.    

What Information is the Advanced Notice Seeking

EPA intends to gather more information before setting an effective date for 1-BP to be counted as a HAP in permitting and compliance.  As a result, the Advanced Notice provides industry the opportunity to weigh in on how the rule may affect the regulated community before the July 26, 2021 rulemaking deadline. 

One area for which EPA requests specific comment is the time necessary for industry affected by the new listing to comply with MACT control technology regulations.  EPA could offer a different compliance timeline for sources already meeting MACT controls for other HAP at its facility as opposed to a facility that becomes subject to MACT standards for the first time as a result of the HAP listing.  Under the CAA, existing sources subject to MACT controls as a result of the original list of HAP were allowed up to 3 years after the effective date of a promulgated MACT standard to come into compliance.  86 Fed. Reg. at 31231. 

The Advanced Notice indicates 1-BP may not be the last HAP added to Congress’s list of HAP.  EPA asks industry’s view on whether or not the new HAP regulations should become part of “general provisions” of the MACT standards, suggesting “EPA could…provide a consistent compliance timeline for all sources impacted by the addition of any new HAP, rather than addressing only 1-BP.”  Id.  

The deadline for filing comments on the Advanced Notice and listing of 1-BP on the HAP list is July 26, 2021.  To file comments on this issue, information must be submitted to EPA, by directing comments to Docket ID No. EPA-HQ-OAR-2014-0471.

Conclusion

EPA is now acting on its promise to address use of 1-BP by industry throughout the United States.  Under the Advanced Notice, EPA intends to list 1-BP as a HAP and make its listing effective in the future.  The listing may change the classification of a manufacturing facility from area source to major source or cause the plant to substitute raw materials for those with 1-BP to avoid Federal Permits and installation of MACT control systems. 

86 Fed. Reg. 31225 (June 11, 2021)