EPA has taken comments on a proposed rule that would remove an exemption from the NESHAP for Site Remediation, 40 CFR 63, Subpart GGGGG (Site Remediation Rule), for activities performed under the Comprehensive Environmental Response and Compensation Liability Act (CERCLA) and for activities performed under a Resource Conservation and Recovery Act (RCRA) corrective action or other RCRA required order. 81 Fed. Reg. 29821 (May 13, 2016).

The exemption was finalized on October 8, 2003. Sierra Club and other environmental groups challenged the rule first with a petition for reconsideration to EPA and by petition for judicial review in the United States Court of Appeals for the D.C. Circuit. The petitioners claimed that EPA lacked the statutory authority to exempt site remediation activities conducted under the authority of CERCLA or RCRA from NESHAP requirements and that EPA had a duty to set standards for each listed HAP emitted from a source category. The petition for judicial review was filed on December 5, 2003 and held in abeyance by order dated January 22, 2004 to allow for settlement discussion. The case lay dormant with no action on petitioners’ claims for almost a decade, despite revisions to the rule in 2006, which did not address the exemption. On October 14, 2014 the court ordered the parties to show cause why the case should not be administratively terminated and the parties began exploring what EPA termed “a new approach.”

On March 25, 2015, EPA granted the petitioners’ request for reconsideration, despite its finding in 2003 that RCRA and CERCLA served as the “functional equivalents of the establishment of NESHAP under CAA §112.” 81 Fed. Reg. at 29824. EPA stated, “this conclusion was based on the requirements of these programs to consider the same HAP emissions that we regulate under the NESHAP and that these programs provide opportunities for public involvement through the Record of Decision process for Superfund cleanups and the RCRA permitting process for corrective action cleanups,” and, upon further consideration of petitioners’ claims, proposed to remove the exemption.

Under the proposed rule, the recordkeeping and reporting requirements of 40 CFR 63.7590-7953 and 63.7955 would be applicable to new and existing affected sources conducting site remediation under CERCLA or RCRA on the effective date of the final rule removing the exemption. For existing sources (those sources that commenced construction or reconstruction before May 13, 2016 and conduct remediation under CERCLA or RCRA overseen by EPA or an authorized agency), the compliance date for the process vent, remediation material management unit and equipment leak requirements would be 18 months from the effective date of the rule removing the exemption. For new sources (those sources that commenced construction or reconstruction after May 13, 2016 and conduct remediation under CERCLA or RCRA overseen by EPA or an authorized agency) the compliance date for the process vent, remediation material management unit and equipment leak requirement would be the effective date of the final rule removing the exemption.

EPA extended the comment period for the proposed rule and accepted comments on the rule until July 27, 2016. Comments from various entities and trade groups, including the National Association of Manufacturers, the National Groundwater Association and the U.S. Department of the Navy can be accessed at www.regulations.gov, Docket No. EPA-HQ-OAR-2002-0021.