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Next Steps for Industrial Boilers Subject to Industrial Boiler and Process Heaters NESHAP - Updated September 14, 2007

Additions to this Web page since September 5, 2007 are italicized. The date that each specific question and answer is posted on this page appears in parentheses after the question.

U.S. District Court of Appeals for the DC Circuit vacated the National Emissions Standard for Hazardous Air Pollutants (NESHAP) for Industrial, Commercial and Institutional Boilers and Process Heaters (Subpart DDDDD) on July 30, 2007.  U.S. EPA will now undertake a new rulemaking to re-establish standards for existing and new boilers and process heaters, but is not likely to complete this effort for several years.

The MPCA is now required by sections 112(g) and 112(j) of the Clean Air Act to establish case-by-case maximum available control technology (MACT) limits for hazardous air pollutants (HAPs) from industrial boilers and process heaters at facilities that were to be regulated by this standard. 

MPCA and other states are waiting for further guidance from USEPA as to how to implement these provisions.   That guidance may establish other timeframes or deadlines.  In the interim, we are advising affected sources of the following:

Existing Boilers and Process Heaters—a “112(j) determination” or “MACT Hammer”

For purposes of managing the 112(j) determination process, the MPCA has decided that boilers and/or process heaters for which an air emissions permit was issued before August 1, 2007 will be subject to the 112(j) process.  That is, the MPCA will treat the boilers and/or process heaters as “existing sources”.  This is a change from MPCA’s August announcement related to the MACT hammer.  If you are an owner or operator of a boiler or process heater for which a permit for operation has been issued AND the facility is a major source of HAPs, a 112(j) application will need to be submitted.   The specific timing for when the applications must be submitted is one of several outstanding questions.  However, to identify the universe of facilities that will be impacted by the court’s action so that a strategy can be developed for how to proceed,the MPCA is requesting the following information, that would be included in a 112(j) application, be provided to the MPCA, Air Quality Permit Document Coordinator by September 28, 2007.  We anticipate that those facilities from which the MPCA receives a complete submittal will have met its obligations to complete a 112(j) application under federal rules.

Federal regulation 40 CFR 63.53 describes the minimum content of applications for a 112(j) determination.  The following material identified in items 1-8 needs to be included in this submittal; the ninth item is optional:

1. The name and address (physical location) of the major source.
2. A brief description of the major source and an identification of the boilers and/or process heaters (e.g. emissions unit ID number and stack vent ID number).
3. Date of boiler/process heater installation and startup.
4. A description of the boiler/process heater, firing method, size of unit in mmbtu/hr.
5. Description of existing air pollution control technology on the unit.  Include the design, operation, size, and estimated control efficiency of air pollution control technology.
6. The list of HAPs emitted from each unit and the potential to emit for each HAP, after existing controls.
7. Identification of all fuels used, and their relative annual percent used.
8. All relevant stack test data for the unit, both criteria and hazardous air pollutants.
9. You may suggest an emissions limit for each HAP in the application relative to the equipment’s design, use of equipment, work practices or operational standard or a combination thereof.  You may also suggest surrogate pollutants for HAPs and associated emission limits for the surrogate.

If you want to limit emissions so that your facility is no longer a major HAP source, facility emissions must be limited below HAP major source thresholds with a federally enforceable permit.  You may include proposed HAP limits in a permit application.  The submittal of a permit application requesting such a limitation does not shield your facility from the 112(j) requirements until the amendment is issued.

No separate form is necessary, however you may choose to use forms EC-02 and EC-13A, -13B, and/or -13C to aid in providing specific information.

Because the original compliance date of Subp. DDDDD was September 13, 2007, the MPCA does not believe assembling and submitting this information for sources subject to the vacated standard represents an undue burden.  The MPCA will be sending notices directly to facilities that are known by the MPCA to be subject to the Industrial Boiler NESHAP alerting the facility to the need for a case-by-case MACT emission limits on the boiler or process heater.  If the 112(j) requirements apply to you but you don’t receive a direct notice from the MPCA, you must still comply with the requirement to submit an application.

New Boilers and Process Heaters

New boilers or process heaters are those boilers or process heaters without an air emissions permit on August 1, 2007.  If you are the owner or operator of a facility that is a major HAP source, or the boiler or process heater is a major HAP source itself, you are prohibited from starting the construction of a new boiler or process heater until there are case-by-case MACT limits in the facility’s Title V permit for the boiler or process heater.  If you are planning such an action, you must revise your Title V permit application and submit a permit application for the installation of the unit with the information described in federal regulation 40 CFR 63.43 (d) and (e).

Frequently Asked Questions

The MPCA recognizes that this situation is a unique event since the advent of the Title V operating permit program in 1995.  More issues and questions will develop as facilities and the MPCA move through the process of establishing performance standards for HAPs from boilers and process heaters.  In this section, look for answers to questions asked of the MPCA.  Continue to use the contacts at the bottom of this page to seek additional or clarifying information. Please note that the date that each specific question and answer is posted on this page appears in parentheses after the question.

1.  Which emission sources are to be inventoried in a 112(j) or 112(g) determination? (posted September 5, 2007)

A 112(j) submittal should identify all boilers and process heaters at the facility that would have been subject to the vacated standard.  This means that you must determine if your facility is a major HAP source AND whether there are affected emission sources onsite.

A boiler is an enclosed device using controlled flame combustion and having the primary purpose of recovering thermal energy in the form of steam or hot water.  Waste heat boilers are excluded.

A process heater is an enclosed device using controlled flame, that is not a boiler, and the unit’s primary purpose is to transfer heat indirectly to a process material (liquid, gas, or solid) or to a heat transfer material for use in a process unit, instead of generating steam.  Process heaters are devices in which the combustion gases do not directly come into contact with process material.  Process heaters do not include units used for comfort or space heat, food preparation, or autoclaves.

Additionally, the vacated standard did not apply to the following sources.  Do not include the following sources in your 112(j)/112(g) determination:

• Municipal Waste Combustors
• Medical Waste Incinerators
• Electric Generating Units greater than 25 MW that sell electricity
• Hazardous waste combustor or boilers
• Commercial/industrial solid waste incinerators (waste burning units without heat recovery)
• A recovery boiler or furnace covered by 40 CFR Pt 63 Subp MM
• A boiler or process heater specifically used for Research and Development
• A hot water heater (defined as a closed vessel with a 120 gal cap)
• A refining kettle covered by 40 CFR part 63, Subp X
• An ethylene cracking unit 40 CFR Pt 63 Subp YY
• Blast furnace stoves
• Any boiler and process heater specifically listed as an affected source in another standard under 40 CFR part 63
• Any boiler and process heater specifically listed as an affected source in Sec 129 of the CAA
• Temporary boilers (at a location for no more than 180 days)
• Blast furnace gas fuel-fired boilers and process heaters

Boilers and process heaters that are defined by the terms above or are not exempted in the list above are deemed an affected unit for purposes of the 112(j) submittal.

2.  Do I include the MACT determination for my existing boiler or process heater in the 112(j) submittal? (posted September 5, 2007)

The MPCA conducts the MACT determination for the 112(j) determination, not the permittee.   You may suggest limits for the 112(j) determination for your facility, but emission limits are not a required component of the 112(j) submittal.

3.  Should the 112(j) determination submittal include emissions data from CEMs? (posted September 5, 2007)

The MPCA has requested relevant stack test data for your source.  If CEMs are in use at the boiler and process heater and you believe it is relevant to the level of HAPs emitted from the unit, please alert the MPCA of the use of the CEMs in the submittal.  The MPCA will contact facilities directly for a report of CEM data.

4. Do I need to submit the 112(j) information if I have submitted a permit application to reissue my Title V permit? (posted September 5, 2007)

The MPCA is requesting this information from all Title V sources with affected units.  A 112(j) submittal does not depend on the status of your current Title V permit. 

5.  The facility air emissions permit currently contains requirements to comply with Subp. DDDDD conditions.  Does a facility continue to comply? (posted September 5, 2007)

Until action is taken by the MPCA to amend facility permits, the MPCA recommends that facilities with operating boilers continue to comply with existing permit requirements.  Besides preventing actual increases in toxic and criteria emissions, NESHAP Part 63 Subp. DDDDD emission limits may have been relied upon to comply with other programmatic or ambient air quality requirements. 

6.  Subp. DDDDD provided a “health-based compliance alternative” to complying with emission limits.  Can a facility show low-risk from current emissions and pollution controls in a 112(j) determination? (posted September 5, 2007)

Because the US Court of Appeals struck down the use of health-based compliance alternatives in a lawsuit related to the NESHAP for plywood manufacturing, MPCA believes the similar compliance method contained in 40 CFR 63 Subp. DDDDD cannot be used in place of specific emission limits contained in a 112(g) or -(j) determination.

7.  A major HAP facility installed a boiler after May 6, 2002 (the end of the 18-month period from EPA’s November 2000 deadline to promulgate a boiler NESHAP).  The boiler would have been subject to 112(g) requirements (new source case-by-case MACT) if EPA had failed to promulgate a standard.  Now that the standard is vacated, are these emission units subject to 112(g), or are they existing sources under 112(j)? (posted September 5, 2007)

In order to manage the current 112(j) process, the MPCA has decided that facilities in this situation may submit a 112(j) submittal as described above.  A worst-case interpretation of the Clean Air Act and federal regulations would make these emission units subject to 112(g) case-by-case MACT determinations retro-actively.  However, other interpretations, including the MPCA’s current interpretation, are possible.  EPA or other court actions may result in an interpretation different from the MPCA’s current position.

8. How will the MPCA use the information in the 112(j) submittal? (posted September 14, 2007)

The MPCA’s goal in this effort is to create a timely, efficient process that is effective and fully protective of public health.

The Clean Air Act Sec. 112(j)(5) directs the permitting authority to issue Title V permit containing limits “…on a case-by-case basis, to be equivalent to the limitation that would apply to such source if an emission standard had been promulgated in a timely manner under subsection (d) [the MACT standard setting process]”.

Different steps are being considered to fulfill the requirement to set emission standards.  For example, rulemaking might be used to establish fuel-specific standards, which would then be incorporated into facility permits.  Case-by-case reviews for each affected facility might be undertaken under guidance of what EPA might have promulgated as a standard.  Regardless, until these submittals and their related data are reviewed a specific course of action cannot be established. 

9.  What if I miss the September 28, 2007 date?  (posted September 14, 2007)

The MPCA is requesting this information by September 28, 2007 so that we can move forward in a timely manner to establish MACT standards to be incorporated into permits.  If submittals made in response to this announcement provide the information as required for a 112(j) application  the MPCA will be able to determine that the facility has met its obligation.  We therefore recommend that complete information be submitted as timely as possible.

If the information is not received a facility will receive a formal request, at some point in the future, requiring submittal of the information in an application by a specific date.

Federal regulation 40 CFR 63.52(e)(5) states that if the owner or operator has submitted a timely and complete application as required by 40 CFR 63.52, that any failure to have a title V permit addressing section 112(j) shall not be violation of 112(j), unless the delay in final action is due to the failure of the applicant to submit, in a timely manner, information required or requested to process the application. 

Contacts

• Anne Jackson 651-757-2460 NESHAP Coordinator
• Carolina Schutt 651-757-2706 Title V operating permits
• Don Smith 651-757-2736 Title V permits authorizing new construction