ENFORCEMENT UNDER THE CAA, TITLE V AND HWC NESHAP: HOW TO DESIGN YOUR COMPREHENSIVE PERFORMANCE TEST AND RESULTING PERMIT PROVISIONS TO LIMIT ENFORCEMENT EXPOSURE UNDER TITLE V PERMITS INCORPORATING THE HWC NESHAP

摘要

The United States Environmental Protection Agency (“EPA”) promulgated the final NationalrnEmission Standards for Hazardous Air Pollutants (“NESHAP”) for Hazardous WasternCombustors (“HWC”) on September 30, 1999. This rule is arguably one of the mostrncomplicated and controversial NESHAP standards promulgated to date, and raises a wide rangernof legal and practical issues, both on its face and in its implementation.rnThis rule is necessarily complicated because it addresses hazardous air pollutant (“HAP”)rnemissions from units that combust hazardous waste, including cement kilns, incinerators, andrnlightweight aggregate kilns which are among the most complicated processes regulated by EPA.rnThus, implementation of this rule will inherently raise technical issues more complex than mostrnother NESHAP rules. Additionally, however, because the rule is a NESHAP, the rule will bernimplemented primarily through Clean Air Act (“CAA”) Title V Operating Permits. Thus,rnimplementation of this rule and compliance with permit provisions derived from this rule will bernthoroughly documented in a manner that effectively enhances the ability of regulatory agencies torninitiate enforcement actions.rnThis paper will explore the legal issues arising from the face of the rule and potentialrnenforcement issues that may arise when attempting to implement the rule. Specifically, thisrnpaper will discuss testing and permitting issues so as to allow facilities to anticipate andrnminimize enforcement exposure under the HWC NESHAP. The areas to be addressed include,rnfirst, the HWC NESHAP rule provisions setting emission/operational standards and testingrnrequirements, as well as patent and latent inconsistencies and ambiguities therein. Second, thernpaper will explore potential test design considerations indicated by application of rule provisionsrnto specific design and operational considerations relevant to cement kilns. Third, the paper willrnprovide suggested methods for drafting permit provisions in order to minimize enforcementrnexposure under Title V considering mandatory reporting and credible evidence issues arisingrnfrom operational monitoring for purposes other than demonstrating permit compliance.