22.1.1 Purpose

The purpose of this regulation is to limit emissions of toxic air contaminants from stationary sources.

22.1.2 Authority

These regulations are authorized pursuant to R.I. Gen. Laws § 42-17.1-2(19) and R.I. Gen. Laws Chapter 23-23, and have been promulgated pursuant to the procedures set forth in the Rhode Island Administrative Procedures Act, R.I. Gen. Laws Chapter 42-35.

The terms and provisions of this regulation shall be liberally construed to permit the Department to effectuate the purposes of state laws, goals and policies.

If any provision of this regulation or the application thereof to any person or circumstance, is held invalid by a court of competent jurisdiction, the validity of the remainder of the regulation shall not be affected thereby.

A. Unless otherwise expressly defined in this section, the terms used in this regulation shall be defined by reference to Part 0 of this Subchapter (General Definitions). As used in this regulation, the following terms shall, where the context permits, be construed as follows:

1. "Acceptable ambient level" or "AAL" means the maximum ambient air concentration of a listed toxic air contaminant that may be contributed by a stationary source, at or beyond that facility's property line, as delineated in §§ 22.9 and 22.10 of this Part, averaged over the time period specified in those tables.

2. “Carcinogen” means a listed toxic substance in §§ 22.9, 22.10, or 22.11 of this Part.

3. "Construction" means any physical change or change in the method of operation (including fabricating, erecting, locating, modification or demolition of an emissions unit) which would result in a change in actual emissions.

4. "Existing source" means a stationary source which is in existence on the effective date of this regulation or, for a listed toxic substance that was added to § 22.9 of this Part, in a subsequent amendment of this regulation, a stationary source that was in existence on the effective date of that amendment.

5. “Imminent threat” means a condition in which the emissions of one or more listed toxic air contaminants from a facility can result in ambient air levels that, if not abated in a reasonable time period, as determined by the Director, have the potential to cause serious health effects to members of the public.

6. “Impact” means the ground level concentration of a pollutant resulting from emissions of that pollutant from a facility. Impact does not include background ambient air concentrations of the pollutant or concentrations of the pollutant resulting from emissions from other facilities.

7. "Listed toxic air contaminant" means any listed toxic substance emitted to the atmosphere as dust, fume, gas, mist, smoke, vapor, or soot.

8. "Listed toxic substance" means any substance that is listed in § 22.9 of this Part.

9. “Major fuel-burning modification” means any physical change or change in the method of operation of a major fuel-burning source that would result in a net emission increase, as defined in Part 9 of this Subchapter (Air Pollution Control Permits), of air pollutants from the combustion of fuel oil, propane, natural gas, or a combination of those fuels equal to or in excess of:

a. Fifteen (15) tons per year of particulate matter less than 2.5 microns in diameter,

b. Twenty-five (25) tons per year of nitrogen oxides or volatile organic compounds,

c. Forty (40) tons per year of sulfur dioxide, or

d. One hundred (100) tons per year of carbon monoxide.

10. “Major fuel-burning source” means any stationary source that emits or has the potential to emit, as defined in Part 9 of this Subchapter (Air Pollution Control Permits), air pollutants from the combustion of fuel oil, propane, natural gas, or a combination of those fuels equal to or in excess of:

a. Fifty (50) tons per year of nitrogen oxides or volatile organic compounds or

b. One hundred (100) tons per year of carbon monoxide, sulfur dioxide or particulate matter less than 2.5 microns in diameter.

11. “Modification” means any physical or operational change to any machine, equipment, device, article or facility which may result in an increased emission rate to the atmosphere of any air contaminant. The following shall not be considered a modification:

a. Routine maintenance, repair, and replacement of any machine, equipment, device, article or facility or parts;

b. Increase in production rate of any machine, equipment, device, article or facility based solely upon the capabilities of existing process equipment;

c. Increase in hours of operation up to the maximum hours allowed in any federally enforceable air pollution control permit or air toxics operating permit; and

d. Use of an alternative fuel or raw material if the machine, equipment, device, article or facility was designed and permitted to accommodate that alternative use.

12. "Perchloroethylene dry cleaning facility" means a facility engaged in the cleaning of clothing, garments, textiles, fabrics, leather goods and/or similar items by means of one or more washes in perchloroethylene, extraction of excess perchloroethylene by spinning, and drying by tumbling in an airstream. The facility includes, but is not limited to, any washer, dryer, filter and purification system, waste disposal system, holding tank, pump, air pollution control equipment and attendant piping, valves and stacks.

13. “Reformulation” means the elimination or reduction of the use of one or more listed toxic substances by replacement with one or more, less toxic substances.

A. Applicability

1. The provisions of this regulation shall apply to any stationary source that emits a listed toxic air contaminant, unless exempted below.

B. Exemptions:

1. The following shall be exempt from the provisions of this regulation:

a. The application of any pesticide or herbicide regulated under authority of the Federal Insecticide, Fungicide, Rodenticide Act, 7 U.S.C. §136 et seq, or the Rhode Island Pesticide Control Act, R.I. Gen. Laws Chapter 23-25, with the exception of the use of ethylene oxide for fumigation or sterilization, shall be exempted from this regulation. It shall be the responsibility of the owner or operator of a source claiming to be exempt from the provisions of this regulation to demonstrate that the facility's use of a listed substance is regulated under the above-mentioned laws;

b. Gasoline filling stations;

c. Fuel burning equipment where the emission of listed toxic air contaminants is solely from the combustion of fuel oil, propane or natural gas; except that new major fuel-burning sources and major fuel-burning modifications that begin operation after April 27, 2004, shall not be exempt from this regulation;

d. Perchloroethylene emissions from perchloroethylene dry cleaning facilities;

e. Sodium hydroxide emissions generated by the addition of sodium hydroxide to an air pollution control system or to a water pollution control/pretreatment system according to its design specifications;

f. Asbestos abatement projects subject to the Rhode Island Department of Health “Rules and Regulations for Asbestos Control”;

g. Lead paint hazard reduction projects and lead paint hazard control projects subject to the Rhode Island Department of Health Lead Poisoning Prevention regulations, 216-RICR-50-15-3;

h. Lead paint removal operations subject to Part 24 of this Subchapter (Removal of Lead Based Paint from Exterior Surfaces); and

i. Organic solvent cleaning operations subject to Part 36 of this Subchapter (Control of Emissions from Organic Solvent Cleaning), provided that facility-wide emissions of listed toxic air contaminants from said operations do not exceed two thousand (2000) pounds in any calendar year.

A. No person shall construct, install, or modify or cause construction, installation, or modification of any stationary source which has the potential to increase emissions of a listed toxic air contaminant by an amount greater than the Minimum Quantity for that contaminant specified in § 22.11 of this Part without first obtaining an approved permit to construct, install or modify from the Director.

1. Organic solvent cleaning machines are exempt from this requirement, provided that the machine meets the applicable requirements of Part 36 of this Subchapter (Control of Emissions from Organic Solvent Cleaning) and that the owner or operator of that machine submits a Compliance Notification Report that contains the required information in Part 36 of this Subchapter (Control of Emissions from Organic Solvent Cleaning), prior to construction, installation or modification of that machine.

B. All permits to construct, install or modify shall be issued in accordance with the provisions and limitations of Part 9 of this Subchapter (Air Pollution Control Permits).

C. Except as specified in § 22.6(D) of this Part, no permit to construct, install or modify will be issued for a stationary source subject to this regulation unless it can be demonstrated that:

1. The emissions of any listed toxic air contaminant from the proposed facility shall not cause an impact, at or beyond the property line of the facility, which exceeds the Acceptable Ambient Levels for that contaminant specified in § 22.9 of this Part. (A guidance document to assist with compliance can be found in the Rhode Island Guideline for Air Quality Modeling for Air Toxics Sources http://www.dem.ri.gov/pubs/regs/regs/air/airtoxmd.pdf); or

2. The proposed facility is designed to achieve Lowest Achievable Emission Rate (LAER) and emissions of any listed toxic air contaminant from the facility shall not cause an impact, at or beyond the property line of the facility, which exceeds the Acceptable Ambient Levels with LAER for that contaminant specified in § 22.10 of this Part.

D. The Director may, at their discretion, modify the modeling analysis requirements specified in § 22.6(C) of this Part by:

1. Allowing the owner or operator to exclude from the analysis impacts from the facility in an area that is not accessible to the public, provided that the owner or operator first demonstrates to the Director that public access to that area is precluded; or

2. Allowing the owner or operator to use an adjusted annual or 24-hour average Acceptable Ambient Level to determine the acceptability of impacts in an area, provided that the owner or operator first demonstrates to the Director that land use or other factors limit the potential duration of public exposure to the contaminant in that area; or

3. Requiring the owner or operator to evaluate one-hour and 24-hour average impacts in areas of the facility’s property to which members of the public have unrestricted access.

A. The owner or operator of a stationary source which emits a listed toxic air contaminant in an amount greater than the Minimum Quantity for that substance specified in § 22.11 of this Part, during a calendar year shall register in writing with the Department on or before April 15 of the following calendar year. The registration shall be signed by the owner or operator of the stationary source. An annual emissions summary submitted to comply with Part 14 of this Subchapter (Record Keeping and Reporting), shall satisfy this requirement provided that it includes all of the information listed in § 22.7(B) of this Part.

B. Registrations shall include, at a minimum, the following information:

1. The name and address of the facility;

2. The name and telephone number of the owner or operator of the facility and of a technical contact person for the facility; and

3. For each of the listed toxic air contaminants emitted by the facility in an amount greater than the Minimum Quantity for that substance during the previous calendar year:

a. The name of the substance;

b. The process that emitted the substance;

c. The amount of the substance used at the facility during the previous calendar year,

d. The amount of the substance emitted by the facility during the previous calendar year, and

e. The method used to calculate emissions from the facility.

C. Any listed toxic substance that is present in a mixture shall be included in the registration provided that:

1. The substance is listed on the Safety Data Sheet (SDS) for that mixture prepared pursuant to the OSHA Hazard Communication Standard (29 C.F.R. § 1910.1200). If the chemical manufacturer claims on the SDS that the content of the mixture is proprietary information, it is the responsibility of the owner or the operator of the facility using that mixture to determine whether the mixture contains listed toxic substances. A certification from the manufacturer shall be deemed an acceptable determination of whether the mixture contains listed toxic substances; or

2. For a mixture which does not have a SDS, the concentration of the listed toxic substance in the mixture is at least one percent (1%). A listed toxic substance that is a carcinogen, as defined in this regulation, shall be included in the registration if the concentration of that substance is at least 0.1% of the mixture.

A. No person shall operate a facility subject to this regulation if:

1. An application for an Air Toxics Operating Permit (ATOP) for that facility is not completed in accordance with the provisions of § 22.8(B) of this Part, upon notification from the Director; or

2. An ATOP for the facility is denied, following review of the Department; or

3. An ATOP or provisional ATOP for the facility is revoked by the Director.

B. The owner or operator of a facility subject to this regulation shall file a completed ATOP application with the Department on forms furnished by the Department within sixty (60) days of written notice from the Director. The Department shall allow a facility additional time to submit the application if the owner or operator demonstrates to the satisfaction of the Department that such an extension is necessary. The Department shall prioritize facilities for requiring the filing of ATOP applications using the procedures specified in the Rhode Island Air Toxics Guideline. ATOP application forms shall be signed by:

1. For a corporation or limited liability company (LLC): a president, secretary, treasurer or vice president of the corporation or member of the LLC in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production or operation facilities applying for the permit;

2. For a partnership or sole proprietorship: a general partner or the proprietor, respectively;

3. For a municipality, State, Federal or other public agency: either a principal executive officer or ranking elected official. For the purposes of this regulation, a principal executive officer of a Federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

C. The Director shall issue an ATOP to a facility if, after review of the application, associated inspection reports, emission test reports, and the results of a modeling analysis conducted it is determined that:

1. Except as provided in § 22.8(D) of this Part, the emissions of any listed toxic air contaminant from that facility shall not cause an impact at or beyond the property line of the facility which exceeds the Acceptable Ambient Levels for that substance specified in § 22.9 of this Part. (A guidance document to assist with compliance can be found in the Rhode Island for the Air Quality Modeling for Air Toxics Sources http://www.dem.ri.gov/pubs/regs/regs/air/airtoxmd.pdf); or

2. LAER has been achieved for emissions of a listed toxic air contaminant and, except as provided in § 22.8(D) of this Part, emissions of that contaminant from the facility will not cause an impact at or beyond the property line of the facility which exceeds the Acceptable Ambient Levels with LAER for that substance specified in § 22.10 of this Part.

D. The Director may, at their discretion, modify the modeling analysis requirements specified in § 22.8(C) of this Part, by:

1. Allowing the owner or operator to exclude from the analysis impacts from the facility in an area that is not accessible to the public, provided that the owner or operator first demonstrates to the Director that public access to that area is precluded; or

2. Allowing the owner or operator to use an adjusted annual or 24-hour average Acceptable Ambient Level to determine the acceptability of impacts in an area, provided that the owner or operator first demonstrates to the Director that land use or other factors limit the potential duration of public exposure to the contaminant in that area; or

3. Requiring the owner or operator to evaluate one-hour and 24-hour average impacts in areas of the facility’s property to which members of the public have unrestricted access.

E. If, upon review of an ATOP application and associated emissions test reports, inspection reports, and modeling results, it is determined that the facility does not meet the requirements in § 22.8(C) of this Part, the Director may issue a provisional ATOP to the facility which includes the following requirements:

1. The facility must be in compliance with the provisions of § 22.8(C) of this Part, within eighteen (18) months of the date of issuance of the provisional ATOP or another reasonable time period as specified by the Director. An additional six (6) months may be allowed if the facility notifies the Department within thirty (30) days of issuance of the provisional ATOP that reformulation will be attempted as a part of a strategy to reduce emissions; and

2. The Director may allow a longer period of compliance if product or process substitutions necessary to achieve compliance with Acceptable Ambient Levels must first be approved by another governmental agency. Interim emission reduction measures may be required in such circumstances; and

3. The facility must comply with any milestones specified in its provisional ATOP by the dates specified in that document. Quarterly reports must be submitted to the Department certifying that the milestones have been met by the specified dates and delineating any other progress made towards compliance with § 22.8(C) of this Part.

F. If, after the review of an ATOP application and associated inspection reports, emission test reports, and modeling results, it is determined that emissions from a facility of one or more listed toxic air contaminants present an imminent threat to the surrounding community, the Director may deny issuance of an ATOP. The Director shall notify the owner or operator of the facility of the specific reasons (including relevant supporting data) that the ATOP was denied.

G. The Director may impose reasonable conditions in an ATOP, including but not limited to:

1. Limitations on hours of operation;

2. Limitations on allowable emissions;

3. Operation and maintenance criteria that are necessary to ensure that the allowable emissions limitations are not exceeded;

4. Installation and/or operation of instrumentation to monitor and record emission data or related parameters;

5. Conditions to ensure that emissions from the facility do not cause ground level concentrations that exceed Acceptable Ambient Levels;

6. Conditions to ensure compliance with State and Federal air pollution control rules and regulations applicable to processes at the facility that emit listed air toxic contaminants; and

7. Periodic emissions testing of the source of the air toxics emissions.

H. Any ATOP may be suspended, revoked or amended by the Director at any time upon a showing that the permit holder has failed to comply with this regulation or the terms and conditions of the ATOP or that the continued operation of the permitted source constitutes a threat to the health and safety of the public or a threat to the environment. In any action to suspend, revoke or amend an ATOP, the Director shall notify the permit holder by mail of the facts, conduct or violation which warrant this action. The notice shall state that the permit holder may request a hearing on the action within thirty (30) days of receipt of the notice. If the Department demonstrates that public health, safety, or welfare imperatively requires emergency action, the Director may order summary suspension of the ATOP pending the proceedings for suspension, revocation or amendment.

I. The holder of an ATOP or provisional ATOP must notify the Director in writing prior to transferring the ATOP or provisional ATOP to another party. Each new owner or operator or holder of the permit shall be responsible for complying with all conditions specified in the ATOP or provisional ATOP.