Enforcement and Inspection

Potential Changes to Chemical Plant Emissions Regulations

The EPA filed a proposed consent decree agreeing to review and potentially revise regulations governing emissions standards for the synthetic chemical manufacturing industry (SOCMI), which includes petrochemical plants. The consent decree was published in response to a lawsuit (Texas Environmental Justice Advocacy Services (TEJAS), et al. v. Regan, No. 1:20-cv-03733-RJL) filed by environmental groups in December 2020 in the U.S. District Court for the District of Columbia. Additional plaintiffs in the suit are California Communities Against Toxics, Environmental Integrity Project, Louisiana Environmental Action Network, Ohio Valley Environmental Coalition, RISE St. James, and the Sierra Club.

The goal of the lawsuit is to compel the EPA to take actions mandated by the Clean Air Act (CAA) under Sections 7401–7671q. It alleges the “EPA has failed to perform its non-discretionary duties to review air standards under §§ 7412 and 7411 and to either revise such standards or promulgate a determination that revision is not required, and is thus in ongoing violation of the Act. This complaint seeks to compel these overdue EPA rulemakings for the [SOCMI] source categories regulated under what is known as the ‘Hazardous Organic’ National Emission Standards for Hazardous Air Pollutants [Hazardous Organic NESHAP or “HON” rule] … and the SOCMI New Source Performance Standards (NSPS).”

These regulations require the EPA to review regulations for this industry sector every eight years, and as part of the review, it must consider innovations in “practices, processes, and control technologies,” especially those related to health risks created by ethylene oxide (EO) and other hazardous emissions released by chemical manufacturing plants.

In the consent decree, the EPA stated its intention to:

  • “[C]onduct a human health risk assessment concurrently with the section 112(d)(6) technology review … and, based on the results of this risk assessment, to take appropriate action to ensure that the standards in the HON continue to provide an ample margin of safety to protect public health.”
  • “[R]eview and, if appropriate, revise the SOCMI NSPS.”

SOCMI HON NESHAP

“EPA listed the SOCMI source category as a major source of hazardous air pollutants in 1992,” states the TEJAS lawsuit. “EPA has recognized that these emissions include at least 130 dangerous pollutants such as [EO], benzene, 1,3-butadiene, and formaldehyde. EPA described the SOCMI source category as notable because it ‘emits a large volume and variety of HAP’s relative to other source categories’ and recognized that ‘SOCMI sources tend to be located in close proximity to populations.’”

The lawsuit identifies approximately 315 SOCMI chemical plants governed by the HON rule.

The NESHAP for SOCMI was promulgated in 1994 and is commonly known as the HON, which established maximum achievable control technology (MACT) standards to regulate the emissions of organic hazardous air pollutants (HAPs) from production processes that are located at major sources.

The regulations consist of four subparts in 40 Code of Federal Regulations (CFR) Part 63. “Subpart F provides the applicability criteria for … SOCMI sources, requires that owners and operators of SOCMI sources comply with subparts G and H, and specifies general recordkeeping and reporting requirements,” states the EPA SOCMI NESHAP website. “The specific control, monitoring, reporting, and recordkeeping requirements are stated in subpart G for process vents, storage vessels, transfer racks, and wastewater streams, and in subpart H for equipment leaks. Subpart I provides the applicability criteria for the non-SOCMI processes subject to the negotiated regulation for equipment leaks and requires owners and operators to comply with subpart H.”

SOCMI NSPS

The lawsuit identifies approximately 255 chemical plants governed by the SOCMI NSPS regulations.

The CAA requires the EPA to list categories of stationary emissions sources if those sources cause or significantly contribute to air pollution that can reasonably be anticipated to endanger public health or welfare. Once identified, under 40 CFR Part 60, the EPA must issue performance standards for new sources within each category. Within the entire chemical manufacturing industry, nine source categories have been identified:

  1. Agricultural chemicals and pesticides manufacturing
  2. Cyclic crude and intermediate production
  3. Industrial inorganic chemical manufacturing
  4. Industrial organic chemical manufacturing
  5. Inorganic pigments manufacturing
  6. Miscellaneous organic chemical manufacturing
  7. Plastic materials and resins manufacturing
  8. Pharmaceutical production
  9. Synthetic rubber manufacturing

For SOCMI, five subparts of 40 CFR Part 60 specifically apply:

  1. Subpart VV—”Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry for which Construction, Reconstruction, or Modification Commenced After January 5, 1981, and on or Before November 7, 2006” (§§ 60.480–60.489);
  2. Subpart VVa—”Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry for Which Construction, Reconstruction, or Modification Commenced After November 7, 2006” (§§ 60.480a–60.489a);
  3. Subpart III—”Standards of Performance for Volatile Organic Compound (VOC) Emissions From the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Air Oxidation Unit Processes” (§§ 60.610–60.618);
  4. Subpart NNN—”Standards of Performance for Volatile Organic Compound (VOC) Emissions From Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations” (§§ 60.660–60.668); and
  5. Subpart RRR—”Standards of Performance for Volatile Organic Compound Emissions From Synthetic Organic Chemical Manufacturing Industry (SOCMI) Reactor Processes” (§§ 60.700–60.708).

Proposed consent decree deadlines

The EPA proposed the following deadlines for its review in the proposed consent decree to resolve the lawsuit:

For the NSPS for SOCMI under 40 CFR 60, Subparts III, NNN, RRR, and VVa:

  • No later than December 16, 2022, the EPA must review the NSPS and sign either a proposed rule containing revisions to the NSPS or a proposed determination not to revise the NSPS.
  • No later than March 29, 2024, the EPA must sign either a final rule containing revisions to the NSPS or a final determination not to revise the NSPS.

For the SOCMI source categories regulated under the HON rule, 40 CFR 63, Subparts F, G, H, and I:

  • No later than December 16, 2022, the EPA must sign a proposed rule containing all “necessary” revisions (taking into account developments in practices, processes, and control technologies) to Subparts F, G, H, and I.
  • No later than March 29, 2024, the EPA must sign a final rule promulgating all “necessary” revisions (taking into account developments in practices, processes, and control technologies) to Subparts F, G, H, and I.

The consent decree has a routine 30-day cutoff for public comment, after which it must be approved by District Judge Richard Leon before it becomes finalized.