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Published in New England’s Environment (January/February 2004)

The Rhode Island Department of Environmental Management (“DEM”) Office of Air Resources had recently proposed amendments to the state regulations governing air toxics – Air Pollution Control Regulation No. 9, Air Pollution Control Permits, and Air Pollution Control Regulation No. 22, Air Toxics. Because of the numerous comments received asking for more input from stakeholders and because there are still a number of issues in controversy, DEM has decided to continue discussions on the issues raised by forming the Air Toxics Outreach Working Group. DEM’s decision to form the working group is welcome news to the regulated community, who are enthusiastic about the ability to discuss their concerns more fully. It is also an indication of the good faith efforts the Office of Air Resources makes to solicit input from stakeholders (including the regulated community, environmental professionals and environmental groups) regarding proposed regulatory changes.

Air Pollution Regulation No. 22, which was first promulgated in 1988, set Acceptable Ambient Levels for forty (40) toxic air contaminants. Those contaminants were selected as the pollutants emitted at that time by stationary sources in the State of Rhode Island that were most likely to adversely impact public health, considering the quantity and toxicity of the pollutant emitted.

The regulation requires stationary sources emitting one or more of the listed pollutants to apply, upon notification by DEM, for an Air Toxics Operating Permit. An Air Toxics Operating Permit is issued only if the stationary source is in compliance with Regulation No. 22, i.e. the impacts from the emissions from the source must not exceed the Acceptable Ambient Levels listed in the regulation. Since promulgation of the regulation, DEM’s Office of Air Resources has evaluated many of the sources of the forty (40) listed pollutants in the State, and has required those sources to comply with the Acceptable Ambient Levels.

A number of developments have occurred in the field of air toxics since the promulgation of the regulation. The Federal Clean Air Act Amendments of 1990 listed 188 Hazardous Air Pollutants and required the United States Environmental Protection Agency (EPA) to develop technology-based standards to control emissions from sources emitting those pollutants. In addition, the EPA, the State of California and other regulators have compiled toxicity information and derived health benchmark levels for a larger number of pollutants in recent years.

The proposed amendments to Regulation No. 22 would add to the list of Air Toxics all of the Federal Hazardous Air Pollutants, as well as forty-seven (47) other pollutants of potential concern, would update the Acceptable Ambient Levels for listed Air Toxics to reflect the current state of knowledge about the toxicity of those pollutants, and would clarify permitting requirements. Dry cleaning requirements would be removed from that regulation. The proposed amendments to Regulation No. 9 would make that regulation consistent with the amended Regulation No. 22. The Air Toxics Operating Permit Requirements currently in Regulation No. 9 would be removed from that regulation and consolidated with other requirements related to those permits in Regulation No. 22.

The Office of Air Resources has determined that implementation of the proposed amendments to Regulation No. 22 may have a significant adverse economic impact on small businesses, cities or towns that operate a facility emitting listed toxic air pollutants. Although DEM works with facilities to develop strategies for reducing impacts and proposed Regulation No. 22 allows facilities eighteen (18) months or another reasonable time period for implementing strategies, an expenditure by the business or municipality is likely required to comply with the proposed regulations. In addition to the economic impact, questions raised by the regulated community include: Whether facilities and processes that do not have the potential for significant emissions would be required to register and should minimum quantities be based on use/generation as proposed or alternatively, on an emission-based criteria?

The Air Toxics Outreach Working Group is poised to consider these and other thorny regulatory issued pertaining to the proposed amendments on January 16, 2003 when it begins its work.

Copies of the proposed regulations, with additions and deletions marked, can be obtained via the internet by accessing the DEM web site at www.dem.ri.gov where the proposed amendments may be viewed on line or downloaded. In addition, DEM administrators advise that the remarks and observations received during the comment period will be posted on the DEM web site. Additional questions may be answered by calling the DEM Division of Air Resources (Stephen Majkut, PE) at 401-222-2808 ext. 7010.