EPA’s Position That HAP Listing of 1-Bromopropane Will Trigger Immediate Major Source Obligations Likely To Be Challenged as Regulated Community Prepares for Potentially Costly Impacts

On Jan. 5, the U.S. Environmental Protection Agency (“EPA”) published a Final Rule in the Federal Register adding 1-bromopropane (“1-BP”) to the list of hazardous air pollutants (“HAPs”) under Section 112 of the Clean Air Act (“CAA”). In so doing, EPA jumped directly from an Advanced Notice of Proposed Rulemaking (“ANPRM”) to the Final Rule, an action that is likely to draw legal challenges from industry trade groups. In the meantime, affected members of the regulated community must react quickly to the anticipated immediate impacts that the HAP listing will have on their regulatory obligations and operations, including potentially applying for a complicated Title V air permit.

Congress created the original list of HAPs in Section 112 of the 1990 amendments to the CAA. Since then EPA has removed several HAPs from the list, but the listing of 1-BP marks the first time that EPA has added a HAP to the CAA list. 1-BP is a common industrial solvent also known as n-propyl bromide, used in several manufacturing operations, including electronics and surface coating. EPA’s action was prompted by petitions filed in 2010 and 2011, respectively, by the Halogenated Solvents Industry Alliance (“HSIA”) and the New York State Department of Environmental Conservation (“NYSDEC”). On June 18, 2020, EPA granted the listing petitions.

The ANPRM, published on June 11, 2021, solicited data and comments on the potential regulatory impacts of the addition of 1-BP to the Section 112 HAP list; however, the ANPRM stated that EPA was not accepting any further comments on its underlying decision to list 1-BP as a HAP. Based upon comments filed on the ANPRM, the Air Advocacy Coalition (“A2C”), which is comprised of several national trade associations including the American Chemistry Council and the American Petroleum Institute, is likely to challenge EPA’s decision to skip the normal proposed rulemaking process because CAA Section 112(b)(2) requires that revisions to the statutory list of HAPs must be made “by rule” (i.e., accomplished through notice and comment rulemaking).

Furthermore, A2C’s comments on the ANPRM highlight several other important issues arising from EPA’s designation of 1-BP as a HAP.  EPA attempts to address these issues in a Question and Answer document (“Q&A”) issued on Jan. 5 with publication of the Final Rule. For example, A2C argues that CAA Section 112 requires EPA to conduct further rulemaking to determine whether and how an existing NESHAP [National Emission Standards for Hazardous Air Pollutants] applies to a new HAP such as 1-BP. EPA’s Q&A acknowledges that 1-BP is not regulated by any current NESHAP because all current NESHAP were promulgated prior to the listing of 1-BP as a HAP. EPA plans to develop a rule that will address impacts, implications, and requirements associated with the addition of a new HAP to the HAP list. According to EPA’s Q&A, this regulatory infrastructure will be proposed for public notice and comment in 2022 and is expected to be finalized in early 2023.

However, EPA also notes that a facility’s classification may immediately change from an area source to a major source because the inclusion of 1-BP emissions in the facility’s potential to emit (“PTE”) may cause the PTE to exceed the major source threshold for HAPs (i.e., 10 tons or more per year of any single HAP and/or 25 tons or more per year for a combination of all HAPs). Therefore, the inclusion of 1-BP in a facility’s PTE might cause the facility to become subject to Title V permitting requirements as a major source of HAP. According to the EPA’s Q&A, such a new major source would have to submit a timely Title V permit application within 12 months or even earlier. This quick turnaround time could pose problems for facilities that have never been subject to complex Title V permitting requirements. In addition, based upon the increase in HAP emissions attributable to 1-BP, the facility also may become subject to the requirements of a major source NESHAP (such as the NESHAP for boilers).

A facility must include 1-BP in its PTE calculation beginning on the effective date of the Final Rule, which is Feb. 4. Therefore, facilities that use 1-BP should be taking one or more of the following steps now:

• Determine whether the inclusion of its 1-BP emissions will trigger Title V major source permitting and/or the applicability of a major source NESHAP standard;
• Consider joining A2C in challenging the validity of EPA’s Final Rule; and
• Consider submitting comments on the regulatory infrastructure rule that EPA plans to propose later this year.

Attorneys with Clark Hill’s Environmental and Government & Regulatory Affairs teams are available to assist with those efforts.