On Friday, May 13, 2016, the EPA published proposed rule amendments that would subject site remediation activities performed under the Comprehensive Response and Compensation Liability Act (“CERCLA”) and Resource Conservation and Recovery Act (“RCRA”) to National Emission Standards for Hazardous Air Pollutants (“NESHAP”). National Emission Standards for Hazardous Air Pollutants: Site Remediation, 81 Fed. Reg. 29821 (proposed May 13, 2016)(to be codified at 40 C.F.R. 60)(“Proposed Rule”). The EPA is also proposing to remove the applicability requirement that a remediation site must be co-located with a facility that is regulated by other NESHAPs in order to be subject to the site remediation rule. These potential rule changes will subject a number of existing facilities to NESHAP rules although these facilities are currently exempt from NESHAP. The EPA is seeking comments on these potential changes by June 27, 2016.


On October 8, 2003, the EPA finalized its site remediation rule, which established NESHAP requirements for site remediation activities. National Emission Standards for Hazardous Air Pollutants: Site Remediation, 68 Fed. Reg. 58172 (October 8, 2003)(codified at 40 C.F.R. 60)(“Site Remediation Rule”). The Site Remediation Rule exempted site remediation activities performed under CERCLA and RCRA. When it originally established the CERCLA/RCRA exemption, the EPA stated that the exemption was appropriate because “the Superfund program under CERCLA and the hazardous waste corrective action program under RCRA” served as “functional equivalents” of NESHAP. Site Remediation Rule, at 58176. Environmental groups sought reconsideration regarding this exemption to the Site Remediation Rule, and also challenged the Site Remediation Rule in court. The environmental groups claimed that the EPA lacked the statutory authority to exempt site remediation activities conducted under CERCLA or RCRA from NESHAP requirements. The environmental groups claimed that neither CERCLA’s nor RCRA’s programs contained air emissions standards for site remediation activities, and also argued that Section 112 of the Clean Air Act requires the EPA to establish hazardous air pollutant (“HAP”) emissions for all site remediation activities, including those activities conducted under CERCLA and RCRA.

Years after environmental groups sought reconsideration regarding the CERCLA/RCRA exemption, the EPA changed its position regarding the exemption. The EPA provided very little guidance on why it changed its position. In the Proposed Rule, the EPA merely states that “[o]nce the EPA has listed a source category or subcategory under CAA section 112(c)(1), CAA section 112(c)(2) requires the EPA to establish emission standards under CAA section 112(d) for the source category or subcategory.” Proposed Rule, at 29824. Therefore, the EPA concluded that it “has an obligation to extend its existing technology-based NESHAP to establish emission standards for all such sources in the Site Remediation source category, including those conducted under the authority of CERCLA and RCRA.” Id.

Proposed Changes to the Existing Site Remediation Rule

Removal of the CERCLA/RCRA Exemption

By removing the CERCLA/RCRA exemption, “major source” sites that clean up remediation material containing one megagram per year or more of certain organic HAPs will now be subject to the requirements of the Site Remediation Rule. A “major source” is one that emits more than 10 tons per year (“tpy”) of any one HAP or 25 tpy of any combination of HAPs. Removal of the exemption will result in both new emission limitations and new work practice standards for three potential sources of HAP emissions at remediation sites: (1) process vents; (2) remediation material management units (tanks, containers, surface impoundments, oil/water separators, organic/water separators, drain systems); and (3) equipment leaks. Removal of the exemption may also impose additional monitoring, recordkeeping, and reporting requirements for a number of major source facilities. Id.

Removal of the Co-Location Requirement

In addition to eliminating the CERCLA/RCRA exemption, the EPA is proposing to remove the current rule that states that remediation sites are only subject to the Site Remediation Rule if they are co-located with facilities that are regulated by NESHAPs. This means that site remediation activities that are considered “major sources” of HAPs will be subject to the Site Remediation Rule of regardless of whether the site remediation is co-located with a facility already subject to NESHAPs.

Potential Impact of the Rule Changes

The EPA predicts that 69 major source facilities performing remediation under CERCLA or RCRA may become subject to the Site Remediation Rule as a result of these proposed rule changes. Proposed Rule, at 29825. According to the EPA, the types of facilities most likely to be affected by the rule changes include, but are not limited to, organic liquid storage terminals, petroleum refineries, chemical manufacturing facilities, government facilities such as military operations, and manufacturing facilities using organic materials.

Parties interested in the proposed rule changes can submit comments to the EPA by Monday, June 27, 2016.