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Administrator Gina McCarthy Office of the Administrator U.S. Environmental Protection Agency Room 3000 William Jefferson Clinton Building 1200 Pennsylvania Ave., NW Washington, DC 20460 (McCarthy.Gina@epa.gov)

BY FIRST CLASS MAIL AND EMAIL

Re: Petition for Reconsiderati on of and Petition for New Fina l Rule For National Emission Standards for Hazardous Air Pollutants: Generic Maximum Achievable Control Technology Standards; and Manufacture of Amin o/Phenolic Resins; Final Rule, Docket ID No. EPA-HQ-OAR-2012-0133

Dear Administrator McCarthy,

This is a petition under Clean Air Act (“C AA” or “the Act”) § 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B) for reconsideration and a new fina l rule. The party submitting this petition is Sierra Club, 85 Second Street, 2nd Floor, San Fr ancisco, CA 94105. By this petition, Sierra Club requests that you reconsider certain aspect s of the final action taken at 79 Fed. Reg. 60,898 (Oct. 8, 2014), titled “National Emission Sta ndards for Hazardous Air Pollutants: Generic Maximum Achievable Control Technology Standa rds; and Manufacture of Amino/Phenolic Resins; Final Rule” (“Rule”), and issue a final rule that will satisfy the Clean Air Act, reduce communities’ exposure to toxic air pollutants em itted by these chemical and resin sources, and strengthen health protection.

I. EPA MUST RECONSIDER THE UNLAWFUL EXEMPTIONS THAT THE FINAL RULE PROVIDES FOR EMISSI ONS FROM PRESSURE RELEASE DEVICES.

A. BACKGROUND

It is important that EPA has recognized the severe problem of uncontrolled toxic air pollution from pressure relief de vices (“PRD”), including valves. 1 Data are available showing that such releases can cause tons of pollution to be released into the air, which could dwarf the actual emission standards applicable. For exam ple, the South Coast Air Quality Management District data collected on such releases from refineries, which use PRDs in a similar way and

1 See, e.g. , Final Rule, 79 Fed. Reg. at 60,905, 60,915-16.2 thus provide relevant, comparable data that EPA may consider for the sources covered by the Final Rule, show an annual range of emissions from VOC emissions from PRD releases for 2003 through 2006 have ranged from 89 to 0.04 tons per year. 2 As refineries use PRDs for many of the same purposes connected to reducing pressure in their equipment, th eir record of use of PRDs, including resulting uncontrolled emissions, is also re levant to the sources in this rulemaking. EPA has recognized this by consulti ng some of the rulemaking information South Coast uses for refineries and chemical plants. 3

Evidence available from other similar sour ces also shows the significant hazardous air pollutant (“HAP”) releases and resulting exposure and other harm that can occur. For example, in the Polymers & Resins IV Rule involving similar sources, EPA found, “[p]ressure release events from [such devices] . . . have the pot ential to emit large quantities of [hazardous air pollutants].” 4

For another chemical and resins rule contai ning similar sources, the American Chemistry Council did a survey of sources w ithin its own membership that it stated “addresses PRDs in the chemical sector and is not limited to the seven chemical sector source categories addressed in” the Polymers & Resins IV source category. 5 Although it stated that these data undermined EPA’s attempt to control HAPs from PRDs, in fact its own data collected showed that a significant percentage of releases are quite large: “[a]pproximately 11% of the re leases reported resulted in emissions of over 1 ton of [h azardous air pollutants] or [volatile organic compounds],” and an even more substantial set, about 20 percent of th e releases the Council found in its research, resulted in emissions of 500 pounds or more. 6 The toxicity and harm from HAPs that are carcinogens and harmful at low leve ls of exposure -- par ticularly for children -- are not illustrated by a measuremen t in pounds or tons alone, and th ey can be harmful at the level of grams or lower. So amounts this large s how a strong need for EPA action to address the dangerous pollution released from various ch emical manufacturing a nd similar sources.

Additional examples abound. In 2011, a device at Eastman Chemical Texas Operations failed to close after a pressure release ev ent and sent nearly one thousand pounds of 1,3 butadiene into the atmosphere. 7 In Dupont’s La Porte, TX plant, a relief device was left open for 5 days, releasing four tons of dichloromethane into the atmosphere. 8 And at another plant, in just 15 minutes, nearly four tons of et hylene dichloride and two and a half tons of vinyl chloride were

2 South Coast Report, EPA-HQ-OAR-2010-0869-0024.

3 79 Fed. Reg. at 60,915-16 (citing South Coas t and Texas rule and data).

4 National Emission Standards for Hazardous Air Pollutant Emissions: Group IV Polymers and Resins; Pesticide Active Ingredient Production; and Polyether Polyols Production, 79 Fed. Reg. 17,340, 17,349 (Mar. 27, 2014); see also id. at 17,354 (citing data on significant emission releases from chemical plants and refineries in Texas).

5 ACC Comments on Polymers & Resins IV, EPA–HQ–OAR–2011–0435-0041, at 8 (Mar. 30, 2012).

6 Id. at 9-10 (Mar. 30, 2012) (stating that 80 percent were under 500 pounds).

7 Eastman Chemical Texas Operations, Emissions Event Report at 2 (Feb. 02, 2011) (Ex. A).

8 EI Dupont De Nemours La Porte Plant, Emi ssions Event Report at 1- 2 (Jun. 15, 2006) (Ex. B).3 released when a pressure relief device did not reseat properly. 9 In a pressure relief device opening that lasted just ten seconds, Formosa Plas tics Corporation’s PVC plant in Point Comfort, Texas emitted more than a ton of vinyl ch loride gas into the neighboring community. 10 That release – of a known human carcinogen – “could ha ve been avoided thro ugh better operational practices.” 11 Oxy Vinyls reported to the Texas Natu ral Resource Conservation Commission that one event in 2000, which started with a 3-minute re lease caused emissions of 5 tons of hazardous air pollutants. 12

These examples show the extent of toxi c exposure that can occur as a result of uncontrolled releases from pressure relief devi ces. For formaldehyde and other carcinogenic hazardous air pollutants, for which there is no safe level of exposure, such uncontrolled releases are extremely dangerous for the 16 million people living near the plants who must breathe air coming across their fence lines, including at least 15,000 whom EPA has recognized have a cancer risk greater than or equal to 1-in-1 million from this source category. 13 As the 1990 CAA legislative history shows: “Federal Governme nt health policy since the mid-1950s has been premised on the principle that there is no safe level of exposure to a carcinogen.” 14 The sources regulated by the Final Rule emit a range of su ch dangerous carcinogens, including formaldehyde toluene, xylenes, benzene, as well as other pollutants regulated under § 7412 (such as toxic metals nickel, cadmium, chromium, and l ead) because of their high toxicity.

Yet, even in the face of the dangers pose d by PRD emissions, EPA changed course from the proposed to the final rule in significant wa ys that undermine its new provisions on pressure relief devices and the severe hazardous air pollution that th ey can cause.

In the proposed rule, EPA proposed to prohibit emissions from all pressure relief devices not routed to a control device. 15 EPA also proposed monitoring and management requirements for PRDs which would not apply only if a device was routed to a control device. EPA did not authorize the delay of leak repa ir in connection with PRDs.

9 Dow Texas Freeport Operation, Emissions Event Report at 1-2 (Nov. 28, 2008) (Ex. C).

10 Tex. Comm’n on Envtl. Qualit y, Exec. Summary - Enforcem ent Matter - Case No. 47496, Formosa Plastics Corp., Tex., RN 100218973, Dkt. No. 2013-1609-AIR-E (Jan. 31, 2014) (Agreed Order at 2) (Ex. D).

11 Id.

12 EPA-HQ-OAR-2002-0037-0028, Letter from Ted Brenne man, Envtl. Mgr., Oxy Vinyls, LP, to Jeffrey Saitas, Exec. Dir., Tex. Natural Resource Conservation Comm’n, at 4-7, JA182-85 (Oct. 16, 2000) (describing that on Sept . 30, 2000, “two relief valves opened and the actual release contained 6500 pounds of [vinyl chloride monom er], 3100 pounds of [ethylene dichloride], and 1400 pounds of [hydrogen chloride]”).

13 Final Risk Assessment (-0065) at 24.

14 See, e.g. , S. Rep. No. 101- 228 at 175 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3560.

15 National Emission Standards for Hazardous Ai r Pollutants: Generic Maximum Achievable Control Technology Standards; and Manufacture of Amino/Phenolic Resins; Proposed Rule, 79 Fed. Reg. 1676, 1713-14 (Jan. 9, 2014).4 In the final rule, although it finalized impor tant new protections from PRD emissions, including a prohibition in certain circumstances and monitoring re quirements, EPA also added a large loophole into thes e provisions: exempting from the pr ohibition on emissions, and from the monitoring and management requirements all PRDs which are routed to a “process, fuel gas system, or drain system.” 16 In addition to this exemption for certain PRDs, EPA also added another set of provisions that appl y to all pressure relief device s: delay of repair requirements that could swallow much of the Rule’s benefits. 17

Because none of these provisions appeared in the proposed rule, EPA provided no public notice or opportunity for public comment on them , and each was “impracticable” to object to during the comment period, under 42 U.S.C. § 76 07(d)(7)(B). Further, because these new aspects of EPA’s rule create unlawful exemptions , including for small leaks that can add up, and indefinite leaks; remove important protection fr om uncontrolled emissions whenever routed to certain kinds of systems; make it more difficult to assure compliance; a nd weaken and delay the protection the Rule provides, this objection is of central releva nce. Thus, under § 7607(d)(7)(B), EPA should grant reconsideration and issue a new rule on this i ssue that would remove these unlawful exemptions, strengthen the PRD provisions and protections and assu re they apply at all times, and set required limits on air toxi cs not included in the current rule.

B. EPA MUST RECONSIDER THE UNLAW FUL EXEMPTION FOR PRESSURE RELIEF DEVICES ROUTED TO A FUEL GAS OR DRAIN SYSTEM AND OTHER EXEMPTIONS FOR LEAKS.

In the proposed rule, EPA proposed to prohib it emissions from all pressure relief devices not routed to a control device. 18 In the final rule, EPA created a new exemption from this prohibition and all related PRD requi rements for PRDs routed to a “process, fuel gas system, or drain system.” 19 It did so based on a new rationale th at appears to rely solely on industry

comments. 20 In the preamble to the Final Rule, EP A provides no reason for this change, nor does it explain how this exemption could be lawful or supported by th e record. It states only that this is a “minor technical correction[].” 21 In the Response to Comments, EPA states that “the prohibition and monitoring requirements do not appl y to PRD release emissions that are captured and routed to a control device, pr ocess, fuel gas system or drain system, since such emissions are not released to the atmosphere.” 22

This creates an exemption that is unexplai ned, unlawful, and arbitrary and capricious. EPA has not shown how unlimited ro uting to a process, fuel gas system or drain system would prevent such emissions from being released to the atmosphere. Nor does it explain what limits will apply to any emissions that these points do indeed release to the atmosphere. EPA has

16 See, e.g. , Final Rule, 79 Fed. Reg. at 60,927, 60,931.

17 Id. at 60,914.

18 See, e.g. , 79 Fed. Reg. at 1713-14.

19 79 Fed. Reg. at 60,914, 60,927, 60,931.

20 Response to Comments Summar y at 33, EPA-HQ-OAR-2012-0133-0066.

21 79 Fed. Reg. at 60,914.

22 Response to Comments Summar y at 33, EPA-HQ-OAR-2012-0133-0066.5 provided no evidence that such emissions would be subject to any HAP limit, much less any such limit that restricts all emitted HAPs. EPA may not authorize an exemption or “no control” standard for HAPs that pass through PRDs.

The Final Rule contains no HAP limits that appl y to process, fuel gas or drain systems. There also appear to be no othe r limits that would appl y to the pollution routed in this manner, based on EPA’s citation of other provisions not cu rrently applicable to these source categories that it has decided (without not ice or comment) to make applicable in the Final Rule. For example, 40 C.F.R. § 63.1034 provides no emission st andards that apply to fuel gas system or processes, pointing only to subpart SS. But in that subpart, 40 C.F.R. §§ 63.982-84, which state that they apply to process and fuel gas systems, appear to set no HAP limits. For drain systems, 40 C.F.R. § 63.136, which applies to process wastew ater, also includes no such limits. EPA has not cited any other provision th at does limit these emissions. Nor has it provided any information to confirm that, even if some unnamed standard applies, that any such applicable standards actually limit all emitted HAPs, as the Act requires. 23

In addition, EPA’s Final Rule cr eates significant confusion re garding what standards, if any, apply to the emission streams routed throug h PRDs. For example, 40 C.F.R. § 63.982 is not referenced, but it applies to fuel gas systems. It is unclear whether this applies. If it does, it appears to create an unlawful exemption from standards of a source’s choice, when it has “combined emissions.” 24 As EPA has acknowledged elsewh ere, such as in the Polyvinyl Chloride Rule, sources that emit via a combined emissions stream must be subject to all applicable standards. 25 They may not pick and choose whic h standards they prefer to follow. EPA has not shown that this will not occur here. Authorizing th is would be unlawful, and EPA must ensure that the Final Rule changes, wh ich were not submitted for notice and comment, do not authorize exemptions from any emission standards.

Further, this change is also unlawful, ar bitrary and capricious because it weakens the PRD provisions EPA is finalizing in other ways as well. The provisions, 40 C.F.R. § 63.984 and § 63.136, which appear to be the only set of requir ements potentially applicable to process, fuel gas and drain systems contain l oopholes and exemptions that EPA, in this rule, and the D.C.

23 See Nat’l Lime Ass’n v. EPA , 233 F.3d 625, 633-34 (D.C. Cir. 2000).

24 40 C.F.R. § 63.982(f) (“combined emissions”) (“When emissions from different emission types (e.g., emissions from process vents, transfer racks, and/or storage vessels) are combined, an owner or operator shall comply with the requirements of either paragraph (f)(1) or (2) of this section.”).

25 PVC Final Rule, 77 Fed. Reg. 22,848, 22,865 (Apr. 17, 2012) “If an emission point is subject to both the PVC NESHAP and other NESHAP becau se emissions from two source categories are vented to the same control device, both standards apply. . . . If the EPA we re to allow sources to meet the requirements from overlapping, but poten tially less stringent rule s in lieu of the PVC standards, there is the possibility that PVC f acilities would not meet the MACT floor based standards in this rule. Although we recognize that facilities may be subject to different NESHAP regulations, sources are responsible for ensuri ng that they comply with all applicable regulations.”).6 Circuit has recognized, or is li kely to recognize, are unlawful. 26 For example, the provisions contain exemptions during star tup, shutdown, malfunction, as we ll as “equipment inspection, maintenance, or repair.” 27 The process, fuel gas system pr ovision states that there is an exemption for “[p]ressure relief devices needed for safety purposes,” but does not state how this could be lawful if those are uncontrolled emissions; or how this is to be determined, or provide any check on a source’s abuse of this provision. 28 Such exemptions are unlawful and EPA may not finalize a rule that allows a source to use them in view of the D.C. Circuit precedent, the Act’s direct requirements that standards be continuous (42 U. S.C. §§ 7412, 7602(k)), and EPA’s own recognition that such an exemption is unlawfu l and inappropriate in this record and other similar rules. Moreover, such systems are exem pt from the usual performance test and design evaluations, which reduce the abili ty to assure compliance and EPA should not allow any such exemptions. 29

As a further significant problem, the Final Rule also authorizes delays in repairing leaks that would not otherwise apply to these sources a nd that were not proposed or discussed as part of the proposed rule. In the proposed rule, EP A did not propose any exemption for indefinite leaks of pressure relief devices. The Final Rule, by citation to th e process, fuel gas, and drain system provisions, has promulgated exemptions that allow indefinite leaks to occur. 30 Thus, although this is unclear and action on reconsideration is required to clarify and address this as described in this petition, the Final Rule appears to apply certain equipment leak provisions to these source categories that are currently co ntained in: 40 C.F.R. § 63.136 (drain system provisions from the HON rule); 40 C.F.R. § 63.171- 72 (delay of repair & closed vent system provisions); 40 C.F.R. § 63.1024 (leak repair). Thes e provisions are riddled with exemptions for leaks, including indefinite delay of repair provisions, and provide no review or assurance that the exemptions are not being abused. Without notice or comment on this question, EPA has finalized a rule that appears to allow a source to avoid standards simply by determining, on its own, that a delay of repair is needed.

For example:

26 40 C.F.R. § 63.984(d): “(d) Route to a fuel gas system or process. Owners or operators that route emissions to a fuel gas system or to a process shall meet the requirements in § 63.984, the monitoring, recordkeeping, and repo rting requirements referenced therein, and the applicable recordkeeping and reporting requirements of §§ 63.998 and 63.999. No other provisions of this subpart apply to emissions being routed to a fuel gas system or process .” 40 C.F.R. § 63.136.

27 40 C.F.R. § 63.984; 63.136.

28 Id. § 63.984(a)(2).

29 Id. § 63.984(b).

30 See, e.g., 79 Fed. Reg. at 60,914 (stating that EPA is clarifying that delay of leak repair provisions “still apply”); 60,927 (for Generic MA CT - AMF and PC sources, promulgating § 63.1107(i)(4), applying leak repair delay pr ovisions in §§ 63.172, 63.1034, and 63.136); id. at 60,931 (for APR sources: promulgating § 63.1141(d) (applying §§ 63.1034 and 63.136 provisions, including delay of repair exemptions).7 1. EPA has finalized standards that allow a pressure relief device to emit above 500 ppm “as provided in [40 C.F. R.] § 63.171 or 63.1024(d), as applicable.” 31
These exemptions did not appe ar in the proposed rule.

2. EPA has finalized standards that allow pressure relief devi ces to vent to a fuel gas system or closed vent system, which may then emit up to 500 ppm without consequences. The rule provides that: “Leaks, as indicated by an instrument reading greater than 500 parts per million above bac kground or by visual inspections, shall be repaired as soon as practicab le, except as provided in pa ragraph (i) of this section.” 32
Thus, although EPA recognizes the need to prohibit uncontrolle d PRD releases, in actuality, it has finalized a rule that provides that releas es below 500 ppm need not even be repaired.

3. If there are emissions above 500 pm , although the standards EPA finalizes generally set a 15-day deadline to repair these emissions as leaks, EPA allows the “delay of repair” to extend through “the end of th e next process unit shutdown,” if a facility alone determines that repair within 15 days “is technically infeasib le without a process unit shutdown,” under 40 C.F.R. § 63.172(h)-(i). 33 That is equivalent to an indefinite delay – which can go on for weeks, months, or years, and allow a large, unlimited amount
of HAPs to leak in the meantime.

For all of the above reasons, the new exemp tions and delay provisions included in the Final Rule are unlawful. The standards incl ude no limit on the hazardous air pollution that process, fuel gas system or drain system may em it into the air. Having no limit on such systems and allowing facilities to route PR Ds to those systems in this rule violates the Act’s requirements that emission standards (1) restrict all emitted hazardous air pollutants; and (2) that they do apply

31 79 Fed. Reg. at 60,927 (adding § 63.1107(e)(2)( i)-(ii).

32 40 C.F.R. § 63.172(h).

33 40 C.F.R. § 63.172(h)-(i) states that: “(h) Leaks, as indicated by an instrume nt reading greater than 500 parts per million above background or by visual insp ections, shall be repaired as soon as practicable, except as provided in paragraph (i) of this section. (1) A first attempt at repair shall be made no later than 5 calendar days after the leak is detected. (2) Repair shall be completed no later th an 15 calendar days after the leak is detected, except as provided in pa ragraph (i) of this section. (i) Delay of repair of a closed-vent system fo r which leaks have been detected is allowed if the repair is tec hnically infeasible without a proce ss unit shutdown or if the owner or operator determines that emissions resulting from immediate repair would be greater than the fugitive emissions likely to result from delay of repair. Repair of such equipment shall be complete by the end of the next process unit shutdown.”8 continuously. 34 EPA has acknowledged that not havi ng restrictions on PRD emissions is inconsistent with these requirements: “Pressure release events from PRDs in organic HAP service to the atmosphere have the potentia l to emit large quantities of uncontrolled and unmeasured HAP.” 35 For the same reasons, EPA may not fi nalize a provision that would exempt any PRD emissions from HAP limits.

In addition, each of these provisions, as appl ied to these source categories in the Final Rule, are unlawful time-period exem ptions to emission standards dur ing indefinite leak periods. Further, EPA has no valid basis to exempt emi ssions 500 ppm or below from the leak repair requirements. These provisions violate the Ac t’s requirement in 42 U.S.C. § 7602(k) that the standards apply at all times. The D.C. Circuit has recognized a time-based exemption (for any amount of emissions that occur during peri ods of startup, shutdow n, or malfunction) is
unlawful. 36 EPA recognizes it may not set such an ex emption in the preambles to the proposed and final rules. EPA must remove all leak repair delay exemptions from these provisions, just as it is proposing to remove all other unlawful ex emptions. EPA must set a firm, enforceable deadline for the repair of all leaks found. EP A must not exempt equipment from binding requirements for detection and repair.

The new exemptions are also arbitrary and capricious. The record includes no evidence, analysis or explanation regarding why EPA is finalizing these exemptions or loopholes. EPA apparently made these changes based purely on industry comments, wit hout providing any legal basis, authority, or evidence for the need for su ch a change, or any notice to other affected stakeholders. 37 Thus on this issue as well, there was no notice and comment, and EPA must reconsider. EPA has failed to provide a reasoned explan ation justifying this.

Further, these new exemptions also contra dict EPA’s own findings on the problems with PRDs in the record. For example, EPA made the reasoned determination that it is necessary to prohibit and monitor PRD releas es and emissions and EPA has not given any explanation for how the exemptions can be reconciled with that determination and the related findings it has made in support of the PRD restriction and monito ring provisions in the Fi nal Rule. EPA also

34 42 U.S.C. §§ 7602(k), 7412; Nat’l Lime Ass’n v. EPA

, 233 F.3d 625, 633-34 (D.C. Cir. 2000 ); Sierra Club v. EPA , 551 F.3d 1019, 1028 (D.C. Cir. 2008).

35 79 Fed. Reg. at 60,905, 60,915-16.

36 Sierra Club v. EPA , 551 F.3d 1019, 1028 (D.C. Cir. 2008).

37 79 Fed. Reg. at 60,914; EPA’s Response to Comments Summary at 33, 36, EPA-HQ-OAR2012-0133-0066.9 found that health risks are significa ntly “driven” by equipment leaks. 38 Thus, EPA cannot and should not justify exemptions a nd loopholes that woul d allow the delay of repair of leaks indefinitely, or the other related exemptions, described above.

II. EPA MUST INCLUDE ALL EXISTING SOURCES IN THE FLOOR ANALYSIS.

EPA states that it excluded information about an existing source’s process vent emissions from its final floor analysis: the Crossett, AR pr ocess vent that is part of a formaldehyde/urea formaldehyde concentrate (UFC) process. 39 EPA did not propose to i gnore this existing process vent’s emissions at the time of the proposed rule. 40 Thus, this is not an issue on which anyone, including Sierra Club, could have submitted an objection during the comment period. It was “impracticable” to do so, and this is an i ssue on which EPA should grant reconsideration pursuant to 42 U.S.C. § 7607(d)(7)(B). EPA did not provide notice and comment on this issue, and should grant reconsideration due to the fact that EPA set a weaker standard than it would have if it had used these data.

In particular, the record shows that if EP A included this source, the MACT limit would have been lower: “If the UFC process line em ission rate would have been included in the continuous process vent MACT fl oor analysis, the resu lting MACT floor would have been 0.5 lb HAP/ton of resin produced rather th an 0.7 lb HAP/ton of resin produced.” 41 Thus, EPA’s refusal to use this information as part of its floor analysis has caused th e agency to set weaker standards for both new and existing sources.

EPA has given no lawful or reasonable e xplanation for excluding this existing source from the analysis. The Act requires EPA to se t standards based on the data it has for existing sources. For categories with fewer than 30 source s, in the floor analys is for existing sources, EPA must set standards that are no less stringent than “the average emission limitation achieved by the best performing 5 sources (for which th e Administrator has or could reasonably obtain emissions information).” 42 For new sources, EPA must set the standard based on the bestperforming single source. 43 EPA also must assure the maximum achievable degree of emissions

38 Final Risk Assessment (-0065) at 24. EPA fo und based on so-called “actual” emissions that: “The results indicate that maximum lifetime i ndividual cancer risks could be up to 20 in a million, driven by formaldehyde emissions from equipment leaks.” Id. Thus, based on allowable emissions, this cancer risk is likely higher. A nd, for reasons stated in comments on this rule, EPA’s risk numbers are like ly a significant underestimate, because they ignore many components of the health risks faced by people on the ground -- particularly when children are exposed early in life, and when people are e xposed to multiple pollutants, through multiple pathways, from multiple sources of toxics. See Comments of Sierra Club (-0036).

39 Memos (-0053 at 4, -0054 at 2 (“The urea form aldehyde concentrate (UFC) process vent at Georgia Pacific’s Crossett facility was not included in the MACT floor.”)).

40 Memo (-0053) at 4 (noting that EPA receive d this information “following the January 2014 proposal”).

41 MACT Floor Memo (-0053) at 5.

42 42 U.S.C.§ 7412(d)(3)(B).

43 Id. § 7412(d)(3).10 for all sources, pursuant to § 7412(d)(2). Under th e plain text of the Act, EPA may not lawfully ignore emission data it has for an existing source -- such as this Georgia Pacific source. Doing so violates the Act and makes th e final APR vent standards unlawf ul, arbitrary and capricious.

In the record, EPA states that this source is different from other vent s, noting that it has a combined emission stream and uses a different c ontrol device (regenerative thermal oxidizer). But, EPA has not explained why those differenc es possibly could or ac tually do justify its exclusion from the floor analysis.

The APR process vents are all part of th e same source category; EPA has not found otherwise. Further, although EPA does not purpo rt to rely on the s ubcategorization provision, EPA could not do so. It may not lawfully set di fferent standards or subcategories based on use of a different control device. Clean Air Ac t § 7412(d)(1) provides only that “[EPA] may distinguish among classes, types, and sizes of sour ces within a category” in establishing emission standards. 42 U.S.C. § 7412(d)(1). Sources are not of a different “class[], type[], or size[],” just because they have installed different contro l technologies. In addition, subcategorizing by control device would defeat the purpose and e ffect of the floor requirements by producing emission standards that merely reflect what each source is already doing to control its emissions, rather than setting standards that reflect what the best-performing sources have achieved (using various types of control technologies). 44 In short, the Act does not authorize EPA to set different standards for such sources, or remove them from a source category’ s floor analysis.

This is an existing source which has lower em issions of HAPs, which is why if it were included, the limits would be lower. Although EPA states that the emission data for this source is not reliable, it includes no e xplanation of why, nor does it st ate why it cannot resolve any concerns it has about these data th rough further analysis or data collection. Such a conclusory statement is insufficient to explain how EPA can lawfully or reasonably ignore emission data showing lower emissions. The fact is EPA ha s emission data showing lower emissions, and knows enough from review of those data to be able to recognize that. No more is needed for EPA to use these data, which industry submitted, as part of the analysis, under § 7412(d)(3).

Finally EPA’s statement that risks are not driv en by process vents is irrelevant to the § 7412(d) process. Section 7412(d) does not authori ze EPA to consider risk in determining what standards to set to meet the floor requirements . As the D.C. Circuit has recognized, those are addressed under § 7412(f), not § 7412(d). 45 Besides, EPA’s risk assessment is an underestimate and cannot be relied on as a way to justify weaker standards, for all of the reasons provided in Comments, reattached and incorporated here. 46

44 See id. § 7412(d)(3) (requiri ng standards to follow the average emission limitation achieved in practice by the relevant numb er of cleanest sources); see, e.g., Chem. Mfrs. Ass’n v. EPA , 870 F.2d 177, 218-19 (5th Cir. 1989), mod. different grounds on reh’g , 885 F.2d 253 (5th Cir. 1989) (rejecting subcategorization base d on control device in setting technology-based standards under Clean Water Act test similar to Clean Air Act § 7412(d)).

45 See, e.g.

, Sierra Club v. EPA , 353 F.3d 976, 990, 992 (D.C. Cir. 2004).

46 Comments of Sierra Club (-0036).11 For all of these reasons, EPA must use the emission data from this source in a floor analysis, and also must ensure that appropriate limits apply to this source, as to all other existing and new sources.

III. EPA MUST GRANT RECONSIDERAT ION TO ADDRESS AND IMPLEMENT RECOMMENDATIONS ON SAFETY TH AT WOULD PREVENT AND REDUCE THE HARM FROM ACCIDENTAL EMISSION RELEASES.
A. Background.

Since the comment period closed, the Chem ical Safety Board, President’s Working Group, and California Refinery Taskforce have issued important new recommendations for EPA to exercise its existing regulatory authority to strengthen chemical facility safety and prevent accidents. Such incidents, in addition to im mediately endangering community members’ and workers’ lives, can lead to significant excess ai r pollution that threatens public health. The people most exposed to toxic air pollution and to health and safety threats from chemical accidents, living in the most vulnerable zones around chemical plants, are disproportionately communities of color and lower income co mmunities, as outlined in a May 2014 report. 47 EPA has recognized extremely dispropor tionate exposure for the resins plants regulated in the Final Rule: 77% of people most exposed to the pollu tion and cancer risks are minority, compared to 28% of the U.S. population; 71% are African American, compared to 13% of the U.S. population. 48

Because the most recent information and reco mmendations were not released until after the comment period closed, it was “impracticable” to object to EPA’s refusal to consider these issues during the public comment period within the meaning of Clean Air Act § 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B). Further, because EPA’ s decision not to require stronger measures to prevent and address excess air po llution that occurs dur ing accidents and explosions means that its rule fails to achieve significant available reduc tions in toxic air emissions , this objection is of central relevance.

B. Grounds for Objection.

In this rule, EPA must appl y the recommendations of expe rts on chemical plant safety and require the use of inherently safer technologies, practices, a nd processes at sources regulated in this rule under its § 74 12(d) and (f) authorities.

In recent decades, refineries and chemical pl ants have had too many serious incidents that have killed people and caused harm to nearby comm unities’ health and safety. Such incidents, in

47 See Paul Orum et al., Envtl. Ju stice & Health Alliance for Chemical Policy Reform, Who’s In Danger? Race, Poverty, and Chemical Disasters, A Demographic Analysis of Chemical Disaster Vulnerability Zones (May 2014).

48 79 Fed. Reg. at 60,919.12 addition to endangering community members’ and workers’ lives in the immediate near-term, can lead to significant excess air pollution th at threatens public he alth over time.

One in three U.S. schoolchildren goes to sc hool within the vulner ability zone of a hazardous chemical facility. 49 The people most exposed to toxic air pollution and to health and safety threats from chemical and resins plants , living in the most vulne rable zones around these facilities, are disproportionately communities of color and lower income communities, as shown by EPA’s own demographic analysis in this rule and outlined in a May 2014 report. 50

As a result of recent catastrophes, the Presid ent’s working group on chemical safety, U.S. Chemical Safety Board, and California Refine ry Taskforce have i ssued important new
recommendations. EPA must consider those r ecommendations in this rulemaking and exercise its existing regulatory authority to strengthen chemical and resi n plants’ facility safety and prevent accidents and the resulting toxic air releases they can cause. The public supports the use of inherently safer, effective alternatives. 51 Requiring transitions to safer techniques and methods strengthens produc tivity and job security. 52

President’s Commitment and Working Group Recommendations

Since his time in the Senate, President Obama has championed requirements for safer alternatives. In 2006 he said, “[e]ach one of these methods re duces the danger that chemical plants pose to our communities and makes them less appealing targets for terrorists...” Facing special interest resistance in the Senate, Obama said, “We cannot allow chemical industry lobbyists to dictate the te rms of this debate. . . . We cannot a llow our security to be hijacked by corporate interests.” 53 In the Senate, he promised regulat ions requiring safer technologies, and called for requirements to convert chemical facilities to inherently safer technologies or chemical processes (“IST”). 54

49 Ctr. for Effective Gov’t, Kids In Danger Zones (Sept. 2014),

http://www.foreffectivegov.org/files/ki ds-in-danger-zones-report.pdf.

50 See Paul Orum et al., Envtl. Ju stice & Health Alliance for Chemical Policy Reform, Who’s In

Danger? Race, Poverty, and Chemical Disaster s, A Demographic Analysis of Chemical Disaster Vulnerability Zones (May 2014), h ttp://comingcleaninc.or g/whats-new/whos-indanger-report; EPA Socioeconomic Analysis, -0226.

51 A national poll by Lake Research showed that a strong majority of likely voters from both parties support new requirements to use of safer cost-effective alternatives. http://preventchemicaldisasters.org/113-2

. 52 Economic and Employment Benefits of the Ch emical and Water Secu rity Act of 2009 (H.R.

2868), Report Prepared for Greenpeace by Manageme nt Information Services, Inc. at 18 (July 2010), http://www.misi-net.com/public ations/Greenp eaceFactSheet-0710.pdf

. 53 https://www.documentcloud.org/documents/563364-obama-amp-his-administrations-policyon-chem.html

. 54 Id.13 On August 1, 2013, President Obama signed an Executive Order recognizing that “additional measures can be taken by executive departments and agenci es (agencies) with regulatory authority to further improve chemical f acility safety and security in coordination with owners and operators.” 55 The Executive Order created an interagency working group, co-chaired by EPA, to advance this objective that is char ged with creating “comprehensive and integrated standard operating procedures for a unified Fe deral approach for iden tifying and responding to
risks in chemical facilities.” 56 The President directed EPA, along with other agencies, to use their existing regulatory authority to advance these goals. In May 2014, the President’s working group issued recommendations. EPA must consider those as part of its review of technologies
and health-risk reduction meas ures to strengthen the Final Rule on reconsideration. 57 As part of this report, the working group “identified ten prior ity action areas to modern ize chemical facility safety and security policy a nd regulations, including . . . Promoting safer technology and
alternatives.” 58

In connection with this effort, a large coal ition of petitioner groups has also petitioned EPA to exercise its authority under § 7412(r) of the Clean Air Act to require the use of inherently safer technologies. 59 That is important to do. In additi on, EPA must fulfill its responsibilities in the current rulemaking to apply IST requirement s for this source category under its authority pursuant to U.S.C. § 7412(d) and § 7412(f) (as well as pursui ng action pursuant to § 7412(r)).

U.S. Chemical Safety Board Reports and Recommendations:

Investigations of several recent disasters by the Chemical Safety Board (CSB) concluded that tragedies from refinery and other chemical plant disasters are preventable. 60 For example,
the CSB found that:

Both the Chevron and Tesoro incidents could have been prevented if inherently safer equipment construction materials had been used. Although inherently safer technology (IST) is the most effective major accident prevention approach in the hierarchy of controls it is not enforced by the EPA through the General Duty Clause or other provisions of the Clean Air Act. . . . Fu rthermore, the Clean Air Act provides the authority for the EPA to develop and impl ement new regulations requiring the use of

55 Exec. Order 13650, Improving Chemical Facil ity Safety and Security, 78 Fed. Reg. 48,029

(Aug. 1, 2013), http://www.whitehouse.gov/the-pr ess-office/2013/08/01/executive-orderimproving-chemical-facility-safety-and-security.

56 http://www.whitehouse.gov/the-press-office/201 3/08/01/executive-order-improving-chemicalfacility-safety-and-security.

57 Working Group, Executive Order 13650 Actions to Improve Chemical Safety and Security – a Shared Commitment, Report for the President (May 2014).

58 Id. at x.
59 See Petition of United Steelworkers et al. to EPA to Exercise It s Authority (July 25, 2012).

60 CSB Investigation Reports, www.csb.gov

.14 inherently safer systems analysis and the hierar chy of controls to es tablish more effective safeguards for identified process hazards to prevent major accidents. 61

Rafael Moure-Eraso, Chairman of the U.S. Chem ical Safety Board, has emphasized that it is essential to implement safer technologies at re fineries, due to their history of preventable problems, and the same is true for chemical and resins manufacturers. 62

The Board’s recommendations on how to preven t such incidents would also prevent the release of toxic air polluta nts that can result from such incide nts. The Board has advised EPA to use its Clean Air Act authority to achieve this – and that authority includ es the authority under
which EPA finalized this rule.

Consideration of safer technologi es, practices, and processes

The recommendations of chemical safety expe rts generally come down to a focus on: prevention and substituting less dangerous chemi cals and techniques whenever possible. In short, the use of inherently sa fer techniques, known as “IST,” can be summarized as: “What you don’t have, can’t leak.” 63 As Trevor Kletz explained:

If we can avoid hazards instead of keeping them under control, the resulting designs will usually be cheaper as well as safer, for two reasons: less added-on protective equipment will be needed and, if we can intensify, the pl ants will be smaller and therefore cheaper to operate. 64

As further explained in a 2010 report prepared by the Center for Chemical Process Safety (“CCPS”) (The American Institu te of Chemical Engineers):

Inherently Safer Technology (IST), also known as Inherently Safer Design (ISD), permanently eliminates or reduces hazards to avoid or reduce the consequences of incidents. . . . IST is an iterative proc ess that considers such options, including eliminating a hazard, reducing a hazard, subs tituting a less hazardous material, using less

61 U.S. Chem. Safety & Hazard Investigation Bo ard, Investigation Report, Tesoro Anacortes

Refinery, Catastrophic Rupture of Heat Ex changer, Apr. 2, 2010 at 12 (No. 2010-08-I-WA) (May 2014), http://www.csb.gov/assets /1/7/Tesoro_Anacortes_2014-May-01.pdf.

62 Rafael Moure-Eraso, CSB Chair, Viewpoints: Ca lifornia is leading the way on oil refinery

safety, Sacramento Bee (Oct. 9, 2014), http://www.sacbee.com/opinion/oped/article2665041.html

. 63 At 1-2 (quoting Trevor Kletz).

64 Trevor Kletz’s Forward in the AIChE CCPS In herently Safer Chemical Processes (2nd Edition

2009).15 hazardous process conditions, and designing a process to reduce the potential for, or consequences of, human error, equi pment failure, or intentional harm. 65

In an examination of 63 CSB reports, studies, and bulletins, CCPS review er, Paul Amyotte of Dalhousie University, concluded, “Simply put, in herent safety works – and the CSB reports show what can happen when the concept is no t given its full measure of consideration.” 66

EPA has authority to and must directly acc ount for updates in safe r technologies and practices as “developments” rele vant to toxic air emission cont rol and must consider reducing the public’s exposure to these source categories’ toxic air pollution re leases under sections 7412(d)(2)-(3), (d)(6) and 7412(f)(2) in this rule. 67 Doing so would be consistent with other components of the final rule. For example, EPA ha s recognized the need, in this rule, to take action to help prevent certain types of malfunction-related inci dents (such as releases from pressure relief devices) that will violate the standards. It can and should do the same for other types of substantial air releases that can occur when there are da ngerous upsets or other incidents of a large scale at one of these facilities.

Safer technologies, practices, and processes are methods that can prevent toxic releases before they happen, and reduce community exposu re and harm if they do occur. EPA must assess and require such technologies, practices , and processes, as “developments” under § 7412(d)(6), yet it has failed to do so in this rule. As the President’s working group report recognizes:

There is little doubt that current regulations – such as PSM, RMP, and CFATS – have encouraged many chemical plant operators to introduce safer technol ogy and alternatives to help reduce the overall risk of their facilities. Several States and localities, including New Jersey, Contra Costa County, and Ri chmond, California, also implemented legislation addressing safer alternatives as part of the broader PHA process. . . .

65 Center for Chemical Process Safety (The Amer ican Institute of Chemical Engineers), Final

Report: Definition for Inherently Safer Technol ogy in Production, Transp ortation, Storage, and Use, Exec-1 (2010) https://www.aiche.org/sites/ default/files/docs/embeddedpdf/ist_final_definition_report.pdf

. 66 An Analysis of CSB Investig ation Reports for Inherent Safe ty Learnings, 7th Global Congress

on Process Safety. Amyotte P, et al., http://www.allriskengineering. com/library_files/AIChe_conferences/AIChe_2011/data/papers/ P207547.pdf.

67 Although EPA also has authority to address and must work to prevent chemical disasters under

§ 112(r), 42 U.S.C. § 7412(r), EPA’s authority to regulate toxic air pol lution resulting from accidents and other dangerous incidents at chemi cal facilities is clearly not limited to that provision.16 . . . EPA inspections and enforcement actions involving the CAA chemical incident requirements found opportunities to employ sa fer alternatives to address risks. 68

EPA cannot ignore these changes as “developmen ts” in pollution practi ces, processes, and control technologies that requir e it to revise the existing st andards under § 7412(d). And, EPA also must assess and require all of these as new and improved methods for safer use of and application of chemicals and resin manufacturing to assure an “ample margin of safety to protect public health” under § 7412(f)(2).

1. EPA should assess the inherently saf er technologies in use and require

them at all sources.

The record does not show that EPA has asse ssed safety practices, process, and control technologies that sources are currently using to pr event catastrophic releases . It should collect information on this from the chemical and resin source categories regulat ed in the Final Rule, and apply that information to set standards for all existing and new sources, pursuant to § 7412(d)(2)-(3), (d)(6), and (f )(2) in this rulemaking.

2. Requirement for anonymous near-miss and other types of anonymous safety and maintenance reporting.

As one example, EPA should consider re quiring anonymous near-miss reporting for malfunctions, PRD releases, and other toxic releases that can cause significant equipment leaks, explosions, and other hazards, incl uding catastrophes. Such a re porting requirement must ensure data (without identifying information for a worker reporting the incident or issue) on such incidents are made publicly ava ilable, and also given to all appropriate state and federal enforcement and regulatory offices.

A system for anonymous worker reporting of maintenance or potential safety problems that can lead to toxic air pollution spikes is a deve lopment that has occurred in various industries.
It takes its name from the Federal Aviation Ad ministration technique to avoid plane crashes, which other industries, including fi refighters, have also adopted. 69 This system is being implemented in the offshore oil and gas dril ling industry, and EPA s hould consider that development and require something similar fo r chemical and resins manufacturers.

68 Working Group Report to the Pres ident at 42-43 (listi ng examples of developments in the use of safer technologies and alternat ive practices or processes).

69 See FAA Aviation Reporting Syst em; National Firefighters www.firefighternearmiss.com ;

CIRAS, (Confidential Incident Reporting and Analysis System), the confidential reporting system for the British railway industry; CH IRP, (Confidential Huma n Factors Incident Reporting Programme / Confidential Hazardous Incident Reporting Programme), British aviation and maritime industries; CROSS (Conf idential Reporting on Structural Safety), structural and civil e ngineering industry/17 As the Director of the Bureau of Safety and Environmental Enforcement (“BSEE”) Brian
Salerno described:

One tool we will soon make available to the industry is the near miss reporting system. This completely anonymous system, which is being developed by the Bureau of Transportation Statistics, will enable offshore wo rkers to report near misses in a way that protects their identity. BSEE will only receive aggregated data and analysis, and that will help us identify leading and la gging indicators. This tool has the potential to help prevent catastrophic incidents that enda nger lives and the environment. However the tool is only as good as the information provided. We will need offshore workers to feel empowered to report near misses and be active particip ants in creating a robust safety culture. 70

Under the BSEE system, U.S. Department of Transportation’s Bureau of Transportation Statistics (“BTS”) will “maintain control of the individual confidential reports. Progress reports, trends analyses and aggregated data will be developed by BTS and made publicly available on the BTS website. The BTS reports will enable BSEE to work with the offshore oil and gas industry as a whole to identify important tre nds and enhance safety across all operations.” 71

In this system, “The identity of individuals and companies who submit reports will be completely confidential and protected under the Confidential Information Protection and Statistical Efficiency Act, legally protecting th em from disclosure and from release under the
Freedom of Information Act.” 72

As the National Firefighter Near Miss website explains: “A near-miss event is defined as
an unintentional unsafe occurrence th at could have resulted in an injury, fatality, or property damage. Only a fortunate break in the chain of events prevented an inju ry, fatality or damage.” 73
EPA can define a “near-miss” air pollution even t similarly. As further explained, for fire fighters:

The Near Miss Reporting System is an integr ated learning environment that assists fire department personnel in turning shared lessons learned into actions that are applied. Through the program, fire fighters and EM S personnel can share their near miss experiences in the field in a voluntary, conf idential, non-punitive and secure way. They are also able to find training resources, gleaned from the collected real-world

70 BSEE, Director’s Corner (Feb. 18, 2014) http://www.bsee.gov/Safety/Directors-Corner/

. 71 BSEE, Press Release, BSEE and BTS to Host Public Meetings to Discuss Near-Miss

Reporting System (Mar. 31, 2014), http://www.bsee.gov/BSEE-Newsroom/PressReleases/2014/BSEE-and-BTS-to-Host-Public -Meetings-to-Discuss-Near-Miss-ReportingSystem/

. 72 Id.

73 http://www.firefighternearmiss.com/About

.18 experiences, that help responders apply the lessons learned and leading safety practices in their own departments. 74

Creating a system like this to try to avoid emission spikes, and especially catastrophic toxic air pollution releases, is one of the type s of requirements that can prevent major problems
that result when basic activities like maintenan ce and leak detection and repair do not occur at all, or in a timely way. Providing an anonym ous method for workers to report the need for maintenance and other safety and air pollution-pr evention activities can ensure such activities happen, before it is too late.

The California Interagency Taskforce recomme nded this type of provision for refineries and it is part of a rule in progress in California. 75 For chemical and resi ns manufacturing sources covered by this Rule, under § 7412(d)(6), to refl ect “developments,” and under § 7412(f)(2), to prevent unacceptable risk and assure the requis ite “ample margin of safety to protect public health,” EPA should require this and set up anonym ous worker reports to go directly to EPA and state regulators, as well as to the facility itself.

CONCLUSION

For the foregoing reasons, Petitioner Sierra Cl ub urges EPA to reconsider the Final Rule and issue a new, stronger final rule that is consistent with the Clean Air Act.

As EPA has recognized, the sources covered by this rule and their pollution have a dramatically disproportionate impact on certa in communities of color and lower income communities, particularly African Americans. The people EPA recognizes are most-exposed to the sources’ emissions are 77% minority (com pared to 28% nationwide), and 71% African American (compared to 13% nationwide). 76 As EPA decides whether to grant reconsideration, Sierra Club urges the agency to recognize the need to provide envi ronmental justice and strengthen protection for everyone exposed to th e emissions from these chemical and resins plants.

Please contact us at (202) 667-4500 to discuss th e issues presented in this petition. We have attached a CD containing relevant cite d documents as an Appendix to this petition.

Thank you for your consideration of these important matters.

74 http://www.firefighternearmiss.com/About

. 75 Draft PSM Regulatory Text, Process Safety Management for Refine ries, Proposed General

Industrial Safety Orde r 5189.1 (Sept. 9, 2014), http://www.dir.ca.gov/dosh/doshreg/ProcessSafety-Management-for-Refinerie s/PSM-Draft-Regulation.2014-09-09.pdf

. 76 79 Fed. Reg. at 60,919.19 Sincerely,

Emma C. Cheuse Earthjustice echeuse@earthjustice.org

Counsel for Sierra Club

Cc: Nick Parsons, parsons.nick@epa.gov Sector Policies and Programs Division (E143-01) OAPQS, EPA Research Triangle Park, NC 27711

Mark Morris, morris.mark@epa.gov Health and Environmental Impacts Division (C539-02) OAQPS, EPA Research Triangle Park, NC 27711

Associate General Counsel for the Air and Radiation Law Office Office of General Counsel, EPA Mail Code 2344A Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, DC 20460

Enc: Documents in Appendix (attached on CD)