Intending to drive a particular point home to everyone involved in the environmental industry, EPA and the Justice Department announced a settlement with two major manufacturers at a press conference on Jan. 21, 2010.

The agencies wanted to let the public know that they were setting precedence for future actions. Routine record reviews indicated to EPA's enforcement arm that some plants at each of these two companies had failed to properly comply with the requirements of the New Source Review (NSR) provisions of the Clean Air Act.

The final settlement forces the companies to make changes at every facility under their control despite the fact that some of the systems were grandfathered. They also will be forced to install specific air emission control technology that is currently not in use in either industry. This action would establish a new standard for Best Available Control Technology (BACT) in each industry sector. The estimated cost to install this technology will likely exceed $280 million. With the addition of penalties, the cost will rise to nearly $300 million.

Assistant Attorney General Ignacia S. Moreno, representing the Department of Justice's Environmental and Natural Resources Division said, "It should be noted that business as usual is no longer acceptable." It's a message: even as standards rise, industry must increase their efforts to comply with current regulations.

Takeaways

There are two important lessons here. The first is that being grandfathered may not be a protection against improving emission controls. In the past, once a plant had successfully navigated the permitting process, it no longer had to be overly worried about keeping up with changes in technology to control emissions, so long as there were no changes to their processes. However, if EPA can force changes at one plant because another plant in the system failed, for any reason, to stay within the regulatory boundaries, there is no grandfathering.

The other lesson is a new BACT standard is set by the agency, even though that technology has not been established in a particular SIC's code in the past. It means that the standard could be a moving target depending upon who is negotiating with the agency. PE