April 8, 2020

April 08, 2020

Subscribe to Latest Legal News and Analysis

April 07, 2020

Subscribe to Latest Legal News and Analysis

April 06, 2020

Subscribe to Latest Legal News and Analysis

Hundreds of Environmental Groups Urge Massive Rulemaking Changes to Control Air Emissions at Plastics Manufacturing Facilities

Led by the Center for Biological Diversity, a group of 364 environmental and other non-governmental organizations have filed a petition with the U.S. Environmental Protection Agency (EPA) to revise standards applicable to petro-plastics production facilities under sections 111 and 112 of the Clean Air Act (CAA). The petition requests that EPA impose unprecedented controls on such facilities and take the following actions, in short:

  1. List ethylene, propylene, polyethylene, and polypropylene production facilities as a source category under CAA section 111 and promulgate New Source Performance Standards (NSPS) for nitrogen oxides (NOx) and other pollutants from these sources.

  2. Require all on-site energy needs at those facilities be met with zero-emission energy.

  3. Update the NSPS for facilities that produce plastic precursors and resins to effectively eliminate the emissions of criteria pollutants and volatile organic compounds (VOCs) from new sources.

  4. Update the Generic Maximum Achievable Control Technology Standards (MACT) for Ethylene Production to effectively eliminate emissions of hazardous air pollutants from new and existing facilities.

  5. Update the NSPS and National Emissions Standards for Hazardous Air Pollutants (NESHAPs) to reflect advances in detection and control technologies.

Next Steps

EPA will now review the petition and determine whether to pursue rulemaking or not. A decision to act on the petition and pursue rulemaking would require significant effort on the part of EPA, including the development of an administrative record, a proposed rule and a formal notice-and-comment process, and attendant litigation, all of which would likely be years in the making. And, rulemaking petitions can often languish for years at the Agency without action. Even if the petition is denied, that denial would itself be appealed as the first step to rulemaking. So, it is highly unlikely that the petition itself will have immediate impacts to industry.

Even so, the petition will likely be influential in other ways. First, the petition makes it clear that plastics production is now a clear target of concerned citizens and environmental groups. The current global movement to address plastics in the environment has largely focused on single-use plastics, shipments of waste plastic products, and management and collection of plastic packaging relative to the source and manufacture of plastics. Now it is clear that the entire chain of production is under scrutiny. Second, the petition moves squarely into a new environmental statute as a grounds for addressing plastics issues – the Clean Air Act (CAA) – and away from the waste, ocean water, and product regulation. The holistic and lifecycle view is reflected even in some of the remedies requested – zero emissions and use of renewable energy for manufacturing. Finally, the petition may also serve as a policy and regulatory blueprint for state and municipal actions or be considered during the required periodic rule reviews under the CAA. 

Regardless, whether EPA acts on the petition or parts of the petition, the petition reflects a sophisticated and sustained focus by concerned citizens, environmental groups, and policymakers, signaled by the numerous environmental and other non-governmental groups who signed it. Restrictions similar to some of those proposed in the petition have also been set forth in a discussion draft of federal legislation under development. 

Key highlights of the 310-page petition are set forth below.

Targeted Facilities

The petition targets facilities and process units that produce plastic precursors, dubbed “petro-plastics production facilities” in the petition, and facilities that manufacture plastic resins, dubbed “plastic production facilities” in the petition. P. 5. More specifically, some of the proposed regulatory actions would focus on facilities producing ethylene, propylene, polyethylene, and polypropylene.

The petition focuses on such facilities for a variety of reasons:

  • Plastic pollution: The petition describes the petitioning groups’ concerns that the growing volume of plastic packaging “will end up in landfills and incinerators, where it will emit harmful pollutants and greenhouse gases. Or it will end up in our oceans, where it will choke marine life and travel through the food web all the way to our plates.” P. 1.

  • Climate impacts: The petition emphasizes the climate impacts arising from every step of the plastic production process, from fracking for natural gas to incineration, landfilling, recycling, and decomposition of plastic waste in the ocean. P. 21. The petition details the climate impacts of the full lifecycle but states that the petition “focuses only on the direct [greenhouse gas (GHG)] emissions from the manufacture of plastic precursors and plastic resins.” P. 21.

  • Toxic air emissions: The petition argues that plastic production facilities emit toxic air pollutants, like 1,3-butadiene, acetaldehyde, benzene, ethylene oxide, styrene, toluene, and formaldehyde. P. 1, 15-17.

  • Projected growth: The petition repeatedly cites to projections that the plastics and chemical industry plans to increase production by at least 35% over the next decade with over 300 projects planned. P. 1. Many of the petition’s recommendations are also based on permits issued by EPA for recent projects.

New Source Category under CAA § 111

The petition argues that “[e]thylene, propylene, polyethylene, and polypropylene production facilities are stationary sources that emit air pollution that endangers public health and welfare and therefore must be listed as a source category under CAA Section 111.” P. 30. 

Under CAA section 111, the EPA Administrator is to list a category of stationary sources “if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b)(1)(A). The petition indicates that ethylene and propylene production facilities emit harmful air pollutants, including NOx, CO, PM­2.5, PM10, SO2, HAPs, VOCs, and GHGs, in quantities that endanger public health and welfare, so such facilities should be listed under CAA section 111. The petition also asserts that the polymerization process, which produces polyethylene and polypropylene, is “similarly harmful to public health and the environment.” P. 31. The petition states that polymerization facilities should be included as well, since polymerization processes are “generally co-located in petro-plastics complexes, and a comprehensive approach to regulation is needed to protect public health and the environment from these harms. . . .” P. 32.

Within one year after including a new category of stationary sources, the Administrator is required to propose regulations establishing new source performance standards (NSPS) for the category. 42 U.S.C. § 7411(b)(1)(B). The petition calls on the Administrator to establish an NSPS for this category for NOx and other pollutants. P. 2, 32.

Zero-Emission Energy

The petition requests that EPA require all onsite power needs at petrochemical production facilities, including for emergency equipment, “be met with renewable energy derived from solar, wind, and other sustainable fuel sources and battery storage.” P. 33. The petition requests that EPA revise 40 C.F.R. subparts Db and IIII and other applicable subparts to this effect. P. 33. In the alternative, the petition requests that “to the extent fossil fuels are used, they should only be permitted during start-up and shut-down, or in emergencies, and only gaseous fuels should be allowed to be burned in any process unit located at the affected facility.” P. 33.

To support its request, the petition asserts that “in light of low-cost wind and photovoltaic energy, combustion of fossil fuel is not BSER” or best system of emission reduction, which is the standard for NSPS established under the CAA. P. 24, 32. The petition also cites to the energy intensity of petrochemical production, stating that “about 85 percent of the global petrochemical industry’s CO2 emissions are attributable to fuel combustion, while the remaining 15 percent come from production process.” P. 32. 

Updated NSPS to Eliminate Emissions of Criteria Pollutants and VOCs

The petition requests that EPA require greater efficiency from control devices to reflect BSER to prohibit the use of certain control devices, like flares. P. 35. The specific actions here requested by the petition are as follows:

  • Inserting the following language into 40 C.F.R. Part 63.670(a): “Flaring is not permitted unless it is necessary for safety in an emergency.” P. 36. The petition also requests that all references to flaring in the NSPS be revised accordingly.

  • Requiring leak-less and seal-less designs to the maximum degree possible, especially for hard-to-monitor components or for components in inaccessible locations. P. 39-40.

  • Prohibiting open-ended lines and connectors except when necessary for safety reasons. P. 40.

  • Requiring internal floating roof tanks as BSER. P. 44-45.

  • Requiring owners and operators to use Optical Gas Imaging technology to monitor for fugitive emissions. P. 40-41.

Additionally, the petition requests that EPA update the efficiency standards for VOC emissions from closed vent systems and control devices to reflect BSER and also requests that EPA update the efficiency standards for total organic compound emissions from petro-chemical production to reflect available technology. P. 37-38.

Updated MACT for Ethylene Production to Eliminate HAP Emissions

The petition calls on EPA to revise the MACT for “Ethylene Production,” which covers ethylene and propylene manufacturing, to “effectively eliminate emissions of hazardous air pollutants from new and existing [petro-plastics production] facilities.” P. 2, 33, 35.

EPA recently published its Residual Risk and Technology Review for the Ethylene Production Generic MACT, and the petition objects to that assessment, arguing that it “fails to analyze the risks from cumulative exposure to toxic pollutants” which occur because these production processes are often co-located with refineries and polymerization facilities that are "clustered together near feedstock and export terminals.” P. 33-34. The petition also raises concerns around “unlawful malfunction and shutdown exemptions” and requests that EPA revisit the MACT and “adopt the most stringent technology available to reduce these HAP emissions to non-detect levels and eliminate unlawful loopholes.” P. 34-35.

The petition also requests that EPA consider introducing a new source category mirroring the section 111 proposal to control facility-wide emissions or instituting a “rulemaking to determine how to reduce facility-wide HAP emissions to non-detect levels.” P. 35.

Updated NSPS and NESHAPs to Reflect Advances in Detection and Control Technologies

The petition requests that EPA revise existing NSPS and NESHAP regulations to reflect advances in detection and control technologies, including the following:

  • Requiring owners and operators to use Continuous Emissions Monitoring Systems to determine compliance. P. 41-42.

  • Increasing the stringency of detection, monitoring, and repair standards to reflect demonstrably achievable limits for equipment leaks for VOCs. P. 42-44.

  • Requiring fence-line monitoring at petro-plastics production facilities. P. 45-46.

© 2020 Beveridge & Diamond PC

TRENDING LEGAL ANALYSIS


About this Author

Madeleine Boyer Environmental Attorney Beveridge Diamond
Principal

Maddie brings 25 years of experience providing strategic and solutions-oriented counseling and representation on a broad range of US and Latin American environmental, health and safety standards.

Her portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and product stewardship advocacy and compliance; and high-stakes enforcement matters. Her domestic caseload currently includes air and waste matters before the US Department of Justice, the Office of the Attorney General of the State of Texas, the US Environmental...

512-391-8010
David Friedland, Environmental Lawyer, Beveridge & Diamond Law Firm
Principal

David Friedland is a Principal in the Washington, DC office of Beveridge & Diamond, P.C.  He is past chair of the Firm’s Environmental Practice Group, and past chair of the Firm's Air Practice Group. He currently serves as the Vice-Chair of the Air Quality Committee of the ABA’s Section on Environment, Energy and Resources, having formerly served for two years as Chair.

202-789-6047
Dacia Meng Environmental Attorney
Associate

Dacie works with clients nationwide across industrial sectors on environmental litigation and regulatory matters. 

She clerked at the Special Litigation and Projects Division of the U.S. Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Office of Civil Enforcement, providing support on Audit Policy enforcement, the Energy Extraction Initiative, and multimedia civil enforcement actions. In this role, she drafted consent decree sections pertaining to Clean Air Act violations, made recommendations for New Owner Audit Policy cases, and wrote memos on...

202.789.6017