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December 8, 2014 

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 Reconsideration of and Petition for New Final Rule For National Emission 

Standards for Hazardous Air Pollutants: Generic Maximum Achievable Control 

Technology Standards; and Manufacture of Amino/Phenolic Resins; Final Rule, Docket 

ID No. EPA-HQ-OAR-2012-0133 

Dear Administrator McCarthy, 

 This is a petition under Clean Air Act (“CAA” or “the Act”) § 307(d)(7)(B), 42 U.S.C. 

§ 7607(d)(7)(B) for reconsideration and a new final rule. The party submitting this petition is 

Sierra Club, 85 Second Street, 2nd Floor, San Francisco, CA 94105. By this petition, Sierra 

Club requests that you reconsider certain aspects of the final action taken at 79 Fed. Reg. 60,898 

(Oct. 8, 2014), titled “National Emission Standards for Hazardous Air Pollutants: Generic 

Maximum Achievable Control Technology Standards; 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 emitted by these chemical and resin sources, and 

strengthen health protection. 

I. EPA MUST RECONSIDER THE UNLAWFUL EXEMPTIONS THAT THE 

FINAL RULE PROVIDES FOR EMISSIONS FROM PRESSURE RELEASE 

DEVICES. 

A. BACKGROUND 

It is important that EPA has recognized the severe problem of uncontrolled toxic air 

pollution from pressure relief devices (“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 example, 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, their record of use of 

PRDs, including resulting uncontrolled emissions, is also relevant to the sources in this 

rulemaking. EPA has recognized this by consulting some of the rulemaking information South 

Coast uses for refineries and chemical plants.3

Evidence available from other similar sources 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 potential to emit large quantities of [hazardous air 

pollutants].”4 

For another chemical and resins rule containing similar sources, the American Chemistry 

Council did a survey of sources within 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 releases reported 

resulted in emissions of over 1 ton of [hazardous air pollutants] or [volatile organic 

compounds],” and an even more substantial set, about 20 percent of the 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 levels of exposure -- particularly for children -- 

are not illustrated by a measurement in pounds or tons alone, and they can be harmful at the level 

of grams or lower. So amounts this large show a strong need for EPA action to address the 

dangerous pollution released from various chemical manufacturing and similar sources. 

Additional examples abound. In 2011, a device at Eastman Chemical Texas Operations 

failed to close after a pressure release event 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 ethylene 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 Coast 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, Emissions 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 Plastics Corporation’s PVC plant in Point Comfort, 

Texas emitted more than a ton of vinyl chloride gas into the neighboring community.10 That 

release – of a known human carcinogen – “could have been avoided through better operational 

practices.”11 Oxy Vinyls reported to the Texas Natural Resource Conservation Commission that 

one event in 2000, which started with a 3-minute release caused emissions of 5 tons of hazardous 

air pollutants.12 

These examples show the extent of toxic exposure that can occur as a result of 

uncontrolled releases from pressure relief devices. 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 Government 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 such dangerous carcinogens, including formaldehyde 

toluene, xylenes, benzene, as well as other pollutants regulated under § 7412 (such as toxic 

metals nickel, cadmium, chromium, and lead) because of their high toxicity. 

 

Yet, even in the face of the dangers posed by PRD emissions, EPA changed course from 

the proposed to the final rule in significant ways that undermine its new provisions on pressure 

relief devices and the severe hazardous air pollution that they 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 repair 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. Quality, Exec. Summary - Enforcement 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 Brenneman, 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 monomer], 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 Air 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 important new protections from PRD emissions, 

including a prohibition in certain circumstances and monitoring requirements, EPA also added a 

large loophole into these provisions: exempting from the prohibition 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 apply to all pressure relief devices: 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. § 7607(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 from uncontrolled emissions whenever routed to 

certain kinds of systems; make it more difficult to assure compliance; and weaken and delay the 

protection the Rule provides, this objection is of central relevance. Thus, under § 7607(d)(7)(B), 

EPA should grant reconsideration and issue a new rule on this issue that would remove these 

unlawful exemptions, strengthen the PRD provisions and protections and assure they apply at all 

times, and set required limits on air toxics not included in the current rule. 

B. EPA MUST RECONSIDER THE UNLAWFUL 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 prohibit 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 requirements for PRDs routed to a “process, fuel gas system, or 

drain system.”19 It did so based on a new rationale that appears to rely solely on industry 

comments.20 In the preamble to the Final Rule, EPA provides no reason for this change, nor 

does it explain how this exemption could be lawful or supported by the 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 apply to PRD release emissions that are captured 

and routed to a control device, process, fuel gas system or drain system, since such emissions are 

not released to the atmosphere.”22 

This creates an exemption that is unexplained, unlawful, and arbitrary and capricious. 

EPA has not shown how unlimited routing 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 Summary at 33, EPA-HQ-OAR-2012-0133-0066. 

21 79 Fed. Reg. at 60,914. 

22 Response to Comments Summary 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 apply to process, fuel gas or drain systems. 

There also appear to be no other limits that would apply to the pollution routed in this manner, 

based on EPA’s citation of other provisions not currently applicable to these source categories 

that it has decided (without notice or comment) to make applicable in the Final Rule. For 

example, 40 C.F.R. § 63.1034 provides no emission standards 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 wastewater, also includes no such limits. EPA has 

not cited any other provision that 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 creates significant confusion regarding what standards, if 

any, apply to the emission streams routed through 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 elsewhere, 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 which standards they prefer to follow. 

EPA has not shown that this will not occur here. Authorizing this would be unlawful, and EPA 

must ensure that the Final Rule changes, which were not submitted for notice and comment, do 

not authorize exemptions from any emission standards. 

Further, this change is also unlawful, arbitrary 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 requirements potentially applicable to process, fuel 

gas and drain systems contain loopholes 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 because emissions from two source categories are 

vented to the same control device, both standards apply. . . . If the EPA were to allow sources to 

meet the requirements from overlapping, but potentially less stringent rules in lieu of the PVC 

standards, there is the possibility that PVC facilities 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 ensuring that they comply with all applicable 

regulations.”). 
6

Circuit has recognized, or is likely to recognize, are unlawful.26 For example, the provisions 

contain exemptions during startup, shutdown, malfunction, as well as “equipment inspection, 

maintenance, or repair.”27 The process, fuel gas system provision 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 unlawful and inappropriate in this record and other 

similar rules. Moreover, such systems are exempt from the usual performance test and design 

evaluations, which reduce the ability 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 and that were not proposed or discussed as part 

of the proposed rule. In the proposed rule, EPA did not propose any exemption for indefinite 

leaks of pressure relief devices. The Final Rule, by citation to the 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 contained 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). These 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 reporting 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 MACT - AMF and PC sources, promulgating § 

63.1107(i)(4), applying leak repair delay provisions 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 appear in the proposed rule. 

2. EPA has finalized standards that allow pressure relief devices 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 background or by visual inspections, shall be 

repaired as soon as practicable, except as provided in paragraph (i) of this section.”32 

Thus, although EPA recognizes the need to prohibit uncontrolled PRD releases, in 

actuality, it has finalized a rule that provides that releases 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 the next process unit shutdown,” if a facility 

alone determines that repair within 15 days “is technically infeasible 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 exemptions and delay provisions included in the 

Final Rule are unlawful. The standards include no limit on the hazardous air pollution that 

process, fuel gas system or drain system may emit into the air. Having no limit on such systems 

and allowing facilities to route PRDs 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 instrument reading greater than 500 parts per million 

above background or by visual inspections, 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 than 15 calendar days after the leak is 

detected, except as provided in paragraph (i) of this section. 

(i) Delay of repair of a closed-vent system for which leaks have been detected is allowed 

if the repair is technically infeasible without a process 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 having restrictions on PRD emissions is 

inconsistent with these requirements: “Pressure release events from PRDs in organic HAP 

service to the atmosphere have the potential to emit large quantities of uncontrolled and 

unmeasured HAP.”35 For the same reasons, EPA may not finalize a provision that would exempt 

any PRD emissions from HAP limits. 

In addition, each of these provisions, as applied to these source categories in the Final 

Rule, are unlawful time-period exemptions to emission standards during indefinite leak periods. 

Further, EPA has no valid basis to exempt emissions 500 ppm or below from the leak repair 

requirements. These provisions violate the Act’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 periods of startup, shutdown, or malfunction) is 

unlawful.36 EPA recognizes it may not set such an exemption 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 exemptions. EPA must set a firm, enforceable 

deadline for the repair of all leaks found. EPA 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, without providing any legal 

basis, authority, or evidence for the need for such 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 explanation justifying this. 

Further, these new exemptions also contradict 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 releases 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 monitoring provisions in the Final 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 significantly “driven” by equipment leaks.38 Thus, EPA cannot and 

should not justify exemptions and loopholes that would 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 process vent that is part of a formaldehyde/urea 

formaldehyde concentrate (UFC) process.39 EPA did not propose to ignore 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 issue 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 EPA included this source, the MACT limit would 

have been lower: “If the UFC process line emission rate would have been included in the 

continuous process vent MACT floor analysis, the resulting MACT floor would have been 0.5 lb 

HAP/ton of resin produced rather than 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 the agency to set weaker standards 

for both new and existing sources. 

 EPA has given no lawful or reasonable explanation for excluding this existing source 

from the analysis. The Act requires EPA to set standards based on the data it has for existing 

sources. For categories with fewer than 30 sources, in the floor analysis 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 the 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 found based on so-called “actual” emissions that: 

“The results indicate that maximum lifetime individual 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. And, for reasons stated in comments on this rule, 

EPA’s risk numbers are likely 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 exposed 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 formaldehyde 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 received 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 the 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 the final APR vent standards unlawful, arbitrary and capricious. 

In the record, EPA states that this source is different from other vents, noting that it has a 

combined emission stream and uses a different control device (regenerative thermal oxidizer). 

But, EPA has not explained why those differences possibly could or actually do justify its 

exclusion from the floor analysis. 

The APR process vents are all part of the same source category; EPA has not found 

otherwise. Further, although EPA does not purport to rely on the subcategorization provision, 

EPA could not do so. It may not lawfully set different standards or subcategories based on use 

of a different control device. Clean Air Act § 7412(d)(1) provides only that “[EPA] may 

distinguish among classes, types, and sizes of sources 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 control technologies. In addition, subcategorizing by 

control device would defeat the purpose and effect 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 emissions 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 explanation of why, nor does it state why it cannot resolve any 

concerns it has about these data through 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 has 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 driven by process vents is irrelevant to the 

§ 7412(d) process. Section 7412(d) does not authorize 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) (requiring standards to follow the average emission limitation achieved in 

practice by the relevant number 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 based 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 RECONSIDERATION TO ADDRESS AND IMPLEMENT 

RECOMMENDATIONS ON SAFETY THAT WOULD PREVENT AND REDUCE 

THE HARM FROM ACCIDENTAL EMISSION RELEASES. 

A. Background. 

 Since the comment period closed, the Chemical 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 immediately endangering community members’ and 

workers’ lives, can lead to significant excess air 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 communities, as outlined in a May 2014 report.47 EPA 

has recognized extremely disproportionate exposure for the resins plants regulated in the Final 

Rule: 77% of people most exposed to the pollution 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 recommendations 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 pollution that occurs during accidents and explosions means that 

its rule fails to achieve significant available reductions in toxic air emissions, this objection is of 

central relevance. 

B. Grounds for Objection. 

In this rule, EPA must apply the recommendations of experts on chemical plant safety 

and require the use of inherently safer technologies, practices, and processes at sources regulated 

in this rule under its § 7412(d) and (f) authorities. 

In recent decades, refineries and chemical plants have had too many serious incidents that 

have killed people and caused harm to nearby communities’ health and safety. Such incidents, in 

                                                     

47 See Paul Orum et al., Envtl. Justice & 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 that threatens public health over time. 

One in three U.S. schoolchildren goes to school within the vulnerability 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 vulnerable 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 President’s working group on chemical safety, U.S. 

Chemical Safety Board, and California Refinery Taskforce have issued important new 

recommendations. EPA must consider those recommendations in this rulemaking and exercise 

its existing regulatory authority to strengthen chemical and resin 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 productivity 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 reduces 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 terms of this debate. . . . We cannot allow our security to be hijacked by 

corporate interests.”53 In the Senate, he promised regulations 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/kids-in-danger-zones-report.pdf. 

50 See Paul Orum et al., Envtl. Justice & 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), http://comingcleaninc.org/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 Chemical and Water Security Act of 2009 (H.R. 

2868), Report Prepared for Greenpeace by Management Information Services, Inc. at 18 (July 

2010), http://www.misi-net.com/publications/GreenpeaceFactSheet-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 agencies (agencies) with 

regulatory authority to further improve chemical facility 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 charged with creating “comprehensive and integrated 

standard operating procedures for a unified Federal approach for identifying 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 measures to strengthen the Final Rule on reconsideration.57 As part of 

this report, the working group “identified ten priority action areas to modernize chemical facility 

safety and security policy and regulations, including . . . Promoting safer technology and 

alternatives.”58

In connection with this effort, a large coalition 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 addition, EPA must fulfill its responsibilities in 

the current rulemaking to apply IST requirements for this source category under its authority 

pursuant to U.S.C. § 7412(d) and § 7412(f) (as well as pursuing 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. . . . Furthermore, the Clean Air Act provides the 

authority for the EPA to develop and implement new regulations requiring the use of 

                                                     

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

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

56 http://www.whitehouse.gov/the-press-office/2013/08/01/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 Its Authority (July 25, 2012). 

60 CSB Investigation Reports, www.csb.gov. 
14

inherently safer systems analysis and the hierarchy of controls to establish more effective 

safeguards for identified process hazards to prevent major accidents.61

Rafael Moure-Eraso, Chairman of the U.S. Chemical Safety Board, has emphasized that it is 

essential to implement safer technologies at refineries, 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 prevent such incidents would also prevent the 

release of toxic air pollutants that can result from such incidents. The Board has advised EPA to 

use its Clean Air Act authority to achieve this – and that authority includes the authority under 

which EPA finalized this rule. 

Consideration of safer technologies, practices, and processes 

The recommendations of chemical safety experts generally come down to a focus on: 

prevention and substituting less dangerous chemicals and techniques whenever possible. In 

short, the use of inherently safer 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 plants 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 Institute 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 process that considers such options, including 

eliminating a hazard, reducing a hazard, substituting a less hazardous material, using less 

                                                     

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

Refinery, Catastrophic Rupture of Heat Exchanger, 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: California 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 Inherently Safer Chemical Processes (2nd Edition 

2009). 
15

hazardous process conditions, and designing a process to reduce the potential for, or 

consequences of, human error, equipment failure, or intentional harm.65

In an examination of 63 CSB reports, studies, and bulletins, CCPS reviewer, Paul Amyotte of 

Dalhousie University, concluded, “Simply put, inherent safety works – and the CSB reports 

show what can happen when the concept is not given its full measure of consideration.”66

EPA has authority to and must directly account for updates in safer technologies and 

practices as “developments” relevant to toxic air emission control and must consider reducing 

the public’s exposure to these source categories’ toxic air pollution releases 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 has recognized the need, in this rule, to take 

action to help prevent certain types of malfunction-related incidents (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 dangerous 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 exposure 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 technology and alternatives 

to help reduce the overall risk of their facilities. Several States and localities, including 

New Jersey, Contra Costa County, and Richmond, California, also implemented 

legislation addressing safer alternatives as part of the broader PHA process. . . . 

                                                     

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

Report: Definition for Inherently Safer Technology in Production, Transportation, 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 Investigation Reports for Inherent Safety 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 pollution resulting from 

accidents and other dangerous incidents at chemical facilities is clearly not limited to that 

provision. 
16

 . . . EPA inspections and enforcement actions involving the CAA chemical incident 

requirements found opportunities to employ safer alternatives to address risks.68

EPA cannot ignore these changes as “developments” in pollution practices, processes, and 

control technologies that require it to revise the existing standards 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 safer technologies in use and require 

them at all sources. 

The record does not show that EPA has assessed safety practices, process, and control 

technologies that sources are currently using to prevent catastrophic releases. It should collect 

information on this from the chemical and resin source categories regulated 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 requiring anonymous near-miss reporting for 

malfunctions, PRD releases, and other toxic releases that can cause significant equipment leaks, 

explosions, and other hazards, including catastrophes. Such a reporting requirement must ensure 

data (without identifying information for a worker reporting the incident or issue) on such 

incidents are made publicly available, 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 development that has occurred in various industries. 

It takes its name from the Federal Aviation Administration technique to avoid plane crashes, 

which other industries, including firefighters, have also adopted.69 This system is being 

implemented in the offshore oil and gas drilling industry, and EPA should consider that 

development and require something similar for chemical and resins manufacturers. 

                                                     

68 Working Group Report to the President at 42-43 (listing examples of developments in the use 

of safer technologies and alternative practices or processes). 

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

CIRAS, (Confidential Incident Reporting and Analysis System), the confidential reporting 

system for the British railway industry; CHIRP, (Confidential Human Factors Incident 

Reporting Programme / Confidential Hazardous Incident Reporting Programme), British 

aviation and maritime industries; CROSS (Confidential Reporting on Structural Safety), 

structural and civil engineering 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 workers 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 lagging indicators. This tool has the potential to help prevent 

catastrophic incidents that endanger 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 participants 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 trends 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 them 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 that could have resulted in an injury, fatality, or property 

damage. Only a fortunate break in the chain of events prevented an injury, fatality or damage.”73 

EPA can define a “near-miss” air pollution event similarly. As further explained, for fire 

fighters: 

The Near Miss Reporting System is an integrated learning environment that assists fire 

department personnel in turning shared lessons learned into actions that are applied. 

Through the program, fire fighters and EMS personnel can share their near miss 

experiences in the field in a voluntary, confidential, 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 types of requirements that can prevent major problems 

that result when basic activities like maintenance and leak detection and repair do not occur at 

all, or in a timely way. Providing an anonymous method for workers to report the need for 

maintenance and other safety and air pollution-prevention activities can ensure such activities 

happen, before it is too late. 

The California Interagency Taskforce recommended this type of provision for refineries 

and it is part of a rule in progress in California.75 For chemical and resins manufacturing sources 

covered by this Rule, under § 7412(d)(6), to reflect “developments,” and under § 7412(f)(2), to 

prevent unacceptable risk and assure the requisite “ample margin of safety to protect public 

health,” EPA should require this and set up anonymous worker reports to go directly to EPA and 

state regulators, as well as to the facility itself. 

CONCLUSION 

 For the foregoing reasons, Petitioner Sierra Club 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 certain communities of color and lower income 

communities, particularly African Americans. The people EPA recognizes are most-exposed to 

the sources’ emissions are 77% minority (compared 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 environmental justice and 

strengthen protection for everyone exposed to the emissions from these chemical and resins 

plants. 

Please contact us at (202) 667-4500 to discuss the issues presented in this petition. We 

have attached a CD containing relevant cited 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 Refineries, Proposed General 

Industrial Safety Order 5189.1 (Sept. 9, 2014), http://www.dir.ca.gov/dosh/doshreg/ProcessSafety-Management-for-Refineries/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)