BEFORE THE

U.S. ENVIRONMENTAL PROTECTION AGENCY

National Emission Standards for Hazardous Air Pollutants for

Polyvinyl Chloride and Copolymers Production

Docket ID No. EPA-HQ-OAR-2002-0037

76 Fed. Reg. 29,528 (May 20, 2011)

SUPPLEMENTAL COMMENTS OF

THE VINYL INSTITUTE, INC.,

PVC MACT WORKING GROUP

Vinyl Institute, Inc.

1737 King Street

Suite 390

Alexandria, VA 22314

(571) 970-3400

Of Counsel:

Peter L. de la Cruz and

Jean-Cyril Walker

Keller and Heckman LLP

1001 G Street, N.W.

Suite 500 West

Washington, DC 20001

(202) 434-4141

September 12, 2011
SUPPLEMENTAL COMMENTS OF THE VI PVC MACT WORKING GROUP

On August 2, 2011, the Vinyl Institute (“VI”) PVC MACT Working Group (“Working

Group”),1filed comments in response to the National Emission Standards for Hazardous Air

Pollutants for Polyvinyl Chloride and Copolymers Production proposed by the U.S.

Environmental Protection Agency (“EPA”).2 As explained in our initial comments, given the

scope and breath of the proposal, the Working Group faced considerable challenges in

completing its comments within the allotted time. These supplemental comments are being filed

to address four topics: a database error, other corrections to VI’s Working Group Comments

submitted August 2, 2011, clarification of the proposed subcategory definitions, and the trigger

date for new sources.

A. Recalculation of TOHAP Floor

Upon further review of the data submitted to the Agency with our comments, the

Working Group discovered that some of the chemical names in the list of organic hazardous air

pollutants (“HAPs”) for one facility were incorrect, although the Chemical Abstract Services

(“CAS”) number and the actual data entries were correct. We investigated the ramifications of

this error and concluded that it had a minor effect on the floor calculations for TOHAP presented

in our August 2 comments. A corrected data table is being included in the corrected VI Working

Group Comments, and a discussion of the changes follows.

Specifically, it appears that most analytes measured at the Shintech, TX facility were

identified as ethylene dichloride (“EDC”). As the spreadsheet calculations were run by HAP

name rather than CAS number, however, the result was that the database over reported EDC

concentrations and under-reported the other 14 analytes for that facility. The correct analyte

names have been reinserted into the database, and following this correction, the recalculated

TOHAP value for existing PVC suspension plants decreased from 130 ppm to 120ppm. The full

effect is illustrated in the summary table below.

TOHAP

Rolling

Limit

TOHAP

Monthly

Limit

TOHAP

Rolling

Limit

TOHAP

Monthly

Limit

Suspension 120 490 38 140

Dispersion 1900 4200 310 420

Vinyl Acetate

Copolymer 2000 2600

Blending 3600 3600

Existing Sources New Sources

Same as Existing

Same as Existing

Proposed Resin

Subcategory

1

In addition to Vinyl Institute (“VI”) members Formosa Plastics Corporation, U.S.A., Occidental Chemical

Corporation/Oxy Vinyls, LP, PolyOne Corporation, Shintech Inc., and Westlake Chemical Corporation, the PVC

MACT Working Group includes non-VI members Dow Chemical Company and Georgia Gulf Corporation. The

Vinyl Institute, Inc., founded in 1982, is a U.S. trade association representing the leading manufacturers of vinyl,

vinyl chloride monomer, vinyl additives and modifiers, and vinyl packaging materials.

2

76 Fed. Reg. 29,528 (May 20, 2011).
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 3

Based on these changes, Figure 9 would be corrected accordingly to show a greater likelihood of

out of compliance for the entire industry:

Figure 1: Percentage of days out of compliance based on individual HAP averages (variability included)

B. Other Corrections to VI Comments

The VI identified minor errors in its comments submitted on August 2, 2011. The

following table lists these errors and the appropriate corrections.

Correction

Number

Page

Number in

VI

Comments

Section Number,

Location in VI

Comments

Correction Reason for Correction

1 4 I.A.3

Table titled

“Recalculated

Stripped Resin

Limits”

“Copolymer” row

should be titled “Vinyl

Acetate Copolymer”

Limits were calculated by VI

using vinyl acetate copolymer

data, the only grade of

copolymer data that was

available for HAP

determination.
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 4

Correction

Number

Page

Number in

VI

Comments

Section Number,

Location in VI

Comments

Correction Reason for Correction

2 4 I.A.3

Table titled

“Recalculated

Stripped Resin

Limits”

The TOHAP limits for

Suspension resin

should be changed

from 130 ppm to 120

ppm for Existing

Sources and from 73

ppm to 38 ppm for

New Sources

The new limits reflect the

correction to the data base

analyte names discussed in

Section A of this letter.

3 4 I.A.3

Table titled

“Recalculated

Stripped Resin

Limits”

The TOHAP limits for

New Sources should be

changed from 790 ppm

to 2,000 ppm for Vinyl

Acetate Copolymer

resin and from 190 ppm

to 3,600 ppm for

Blending Resins

The values for New Source

TOHAP limits were incorrectly

stated as being the same as those

for VCM Daily Limits

proposed.

4 5 I.B

3

rd bullet down

Delete “control

devices, and promoted

when possible, over”

It is not the Working Group’s

intention to promote recovery

devices in place of control

devices. The comment

recommends that recovery

devices be treated separately

from control devices.

5 33 III.C.1

Figure 2:

Percentage of

days out of

compliance

based on

individual

HAP averages

(variability

included)

Bars indicating days

out of compliance for

FPC-LA, Oxy DP, and

Oxy Ptown have been

revised

The recalculated TOHAP limits

to proposed lower levels

discussed in Section A of this

letter have correspondingly

changed the days out of

compliance for the 3 mentioned

facilities.

6 35 III.C.2

Table 4:

Stripped Resin

Limits Actually

Achieved

“Copolymer” row

should be titled “Vinyl

Acetate Copolymer”

Limits were calculated by VI

using vinyl acetate copolymer

data, the only grade of

copolymer data that was

available for HAP

determination.
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 5

Correction

Number

Page

Number in

VI

Comments

Section Number,

Location in VI

Comments

Correction Reason for Correction

7 35 III.C.2

Table 4:

Stripped Resin

Limits Actually

Achieved

The TOHAP limits for

Suspension resin

should be changed

from 130 ppm to 120

ppm for Existing

Sources and from 73

ppm to 38 ppm for

New Sources

The new limits reflect the

correction to the data base

analyte names discussed in

Section A of this letter.

8 40 III.H

Table 5:

TOHAP Limits

Rolling

Average vs.

Monthly

Limits

“Copolymer” row

should be titled “Vinyl

Acetate Copolymer”

Limits were calculated by VI

using vinyl acetate copolymer

data, the only grade of

copolymer data that was

available for HAP

determination.

9 40 III.H

Table 5:

TOHAP Limits

Rolling

Average vs.

Monthly

Limits

The TOHAP rolling

average limits for

Suspension resin

should be changed

from 130 ppm to 120

ppm for Existing

Sources and from 73

ppm to 38 ppm for

New Sources

The new limits reflect the

correction to the data base

analyte names discussed in

Section A of this letter.

10 40 III.H

Table 5:

TOHAP Limits

Rolling

Average vs.

Monthly

Limits

The TOHAP monthly

limits for Suspension

resin should be

changed from 550 ppm

to 490 ppm for Existing

Sources and from 200

ppm to 140 ppm for

New Sources

The new limits reflect the

correction to the data base

analyte names discussed in

Section A of this letter.

11 49 IV.C

First indent

under first

paragraph

Change font to bold on

“some recovery

devices”

Emphasis is added to indicate

that not all recovery devices

should be defined as control

devices.

12 88 VII.C(a)

Subheadings

(4), (i), (ii), &

(iii)

Change bold font to

regular font

No emphasis is intended for this

set of subheadings and the

change returns the subheading

to be identical to 40 C.F.R. §

63.246(a)(4)
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 6

C. Subcategorization Text

After reviewing our August 2 comments, we determined that it may be helpful to present

our subcategorization revisions in the form of revised preamble and regulatory language. There

is no substantive change in our position. Submitting our suggestions in this form may assist the

agency’s assessment of our comments. We follow the sequence of presentation in EPA’s

proposal. Underlining indicates additions and strikethrough indicates deletions.

We stress that the following suggestions are limited to subcategorization issues only and

are not intended to address comments on other topics, including comments filed by Occidental

Chemical Corporation and CertainTeed Corporation addressing area source issues.

76 Fed. Reg. at 29,532

C. How have we used subcategories in the proposed rule?

Most of the emissions sources subject to the proposed regulation have the same

characteristics, and are addressed consistently, independent of process operations or

products produced. We are proposing, however, threeto subcategorizes for our limits on

the amount of HAP remaining in resins following polymerization and stripping (i.e., the

stripped resin). Our approach first recognizes that the PVC and copolymers production

source category encompasses two distinct chemical products: (1) PVC homopolymers,

which are produced by polymerizing VCM by itself; and (2) PVC copolymers, which are

produced by simultaneously polymerizing VCM and other vinyl monomers, such as vinyl

acetate.

These subcategories for each type of product reflect differences in are based on the type

of resin produced, equipment used in the polymerization process, and operating

conditions., For homopolymers, the subcategories include: (1) suspensionBulk resin, (2)

dispersion resin, and (3) blending resin, and (4) bulk resinall other resin (e.g., suspension

and solution resin). For copolymers, the subcategories include: (1) suspension resin, (2)

dispersion resin, (3) blending resin, and (4) solution resin.

76 Fed. Reg. at 29,534

6. Stripped Resin

In 40 CFR 63.11960 of the proposed rule, we are proposing emission limitations for

residual vinyl chloride and total HAP in the stripped resin presented in Tables 2 and 3 of

this preamble. The limits were developed for new and existing sources for three based on

separate subcategories of PVC resins for homopolymer and copolymer resin products: (1)

Bulk resins, (2) dispersion resins, and (3) all other resins. For homopolymers, the

subcategories include: (1) suspension resin, (2) dispersion resin, (3) blending resin, and

(4) bulk resin. For copolymers, the subcategories include: (1) suspension resin, (2)

dispersion resin, (3) blending resin, and (4) solution resin. These emission limits would

apply at all times.
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 7

76 Fed. Reg. at 29,539

IV. Rationale for the Proposed PVC Rule for Major and Area Sources (40 CFR part

63, subpart HHHHHHH)

A. How did EPA subcategorize PVC production?

The CAA allows EPA to divide source categories into subcategories, based on

differences in class, type, or size. For example, differences between given types of units

can lead to corresponding differences in the nature of emissions and the technical

feasibility of applying emission control techniques. For the stripped resin limits, we are

proposing three separate subcategories for homopolymer and copolymer resin products.

In the United States, four five different types of polymerization processes have been used

to manufacture PVC and copolymer: dispersion, suspension, blending, solution, and bulk.

The type of resin chemistry (homopolymer or copolymer), resin type (equipment design,

operating conditions and production process) and resin grade (recipe) used is are all

dictated by the end use of the product and the product’s required physical and chemical

properties and function, such as the need for flexibility, rigidity, or the ability to be

molded. For example, to make dispersion resins (as compared to other types of resins),

different reactants, initiators, and surfactants are used in the manufacturing process.

Dispersions resins also require different agitation speeds, and will utilize different drying

equipment and processes from other resins. The differences in chemicals used for

manufacturing, and the properties of the final product, result in products with different

compositions.

After the polymerization process is complete, the PVC resin is sent to a resin stripper, or

the resin can be stripped directly in the reactor to remove residual HAP such as vinyl

chloride. The vent streams from the resin stripper, polymerization reactors, other process

components upstream of the resin stripper, and vents from the wastewater stripper are

sent to recovery processes to recover unreacted VCM. After recovery, the vent stream

containing unrecovered VCM is sent to a control device before being emitted to

atmosphere.

Dispersion resins have less porosity, mechanical stability, and heat stability than

suspension or solution resins, resulting in more difficulty in stripping vinyl chloride.

Consequently, the levels of vinyl chloride in the stripped dispersion resin products are not

as low as those in the stripped suspension resin products. At bulk resin production, the

product of the polymerization process results in a resin that is more of a solid rather than

a slurry, which is unlike solution, dispersion, and suspension resins, and results in a

different emissions profile at the resin stripper for organic HAP and vinyl chloride. We

are unaware of any resin that is being manufactured using the solution process, and we do

not have emissions data on this type of process.

For purposes of the stripped resin limits, which serve to limit emissions from points

downstream of the resin stripper, we are proposing to subcategorize PVCPU

homopolymer and copolymer resin products by resin type. Homopolymers are into

further subcategorized into three subcategories: bulksuspension resins, dispersion resins,
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 8

and all otherblending resins, and bulk resins types. Copolymers are subcategorized into:

suspension resins, dispersion resins, blending resins, and solution resins. In the absence

of data on solution resin production facilities, we are incorporating them into the “other

resins” subcategory, which also includes suspension resin. We are requesting comment

on the proposed subcategorization, and the appropriateness of including suspension and

solution resins in the same subcategory.

We are not proposing to establish separate subcategories for any of the other emission

points regulated by the proposed rule (process vents, equipment leaks, wastewater,

storage vessels, other emission sources, and heat exchange systems by resin type). The

same air pollution control devices, wastewater treatment processes, and work practices

for these kinds of emission points are applicable and effective regardless of any potential

differences in physical and chemical properties of the resin being produced. Therefore,

EPA chose not to subcategorize in setting emission limitations and work practice

standards for these emission points.

76 Fed. Reg. at 29,542

C. How did EPA determine the proposed emission standards for area sources?

In reviewing the data collected from major and area sources for development of the

proposed rule, it is clear that the one PVC area source, like the major sources, is

achieving vinyl chloride emission limits well below those required in the 2007 area

source NESHAP (40 CFR part 63, subpart DDDDDD) and the part 61 NESHAP. The

data collected from major and area sources are discussed in the memorandum, Baseline

Emission Estimates for the Polyvinyl Chloride and Copolymers (PVC) Production Source

Category, which is available in the docket. The PVC area source uses the same control

technologies as the major sources. For example, for process vents, the area source is

using the same control technology (a thermal oxidizer in series with an acid gas scrubber)

as most major sources. It is also using the same wastewater control (a wastewater

stripper) used by major sources, and implementing the same type of equipment LDAR

program as most major sources. The achievability of stripped resin HAP limits is a

function of the resin chemistry (homopolymer or copolymer), resin-type subcategory

(bulksuspension, dispersion, blending, bulk, or othersolution),3and the resin grade

(recipe) used, rather than the size of the PVCPU, or its location at a major or area source,

and the PVC area source is already meeting the proposed stripped resin MACT limits for

the bulk PVC subcategory.

3 The resin-type subcategory also dictates equipment design, operating conditions and production process.
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 9

76 Fed. Reg. at 29,545

1. Variability Calculation for MACT Floor Emission Limits Based on Emissions Test

Data

We first determined the distribution of the emissions data for the best performing five

sources within the source category for process vents, and within each subcategory of

homopolymer and copolymer resin products for resins prior to calculating UPL values.

To evaluate the distribution of the best performing dataset, we first computed the

skewness and kurtosis statistics, and then conducted the appropriate small-sample

hypothesis tests.

Definitions

§ 63.12005 What definitions apply to this subpart?

Blending Process means a process for producing polyvinyl chloride resin that is similar

to the suspension polymerization process, but employs a rate of agitation that is

significantly higher than the highest range for generic suspension resins. The blending

process uses a recipe that creates extremely small resin particles, generally equal to or

less than 100 microns in size, with a glassy surface and very little porosity. The blending

process concentrates the resins using a centrifuge that is specifically designed to handle

these small particles. Polyvinyl chloride resins produced using the blending process are

referred to as blending resins and are typically blended with dispersion resins.

Grade means the subdivision of PVC resin classification type which describes it as a

unique resin, i.e., the most exact description of a resin type with no further subdivision,

including low molecular weight suspension resins, general purpose suspension resins, etc.

Polyvinyl chloride (PVC)homopolymer means a synthetic thermoplastic polymer that is

derived from the polymerization of vinyl chloride and has the general chemical structure

(–H2CCHCl–)n. Polyvinyl chloride homopolymer is typically a white powder or

colorless granule. Polyvinyl chloride homopolymer is produced by different processes,

including (but not limited to), suspension, dispersion/emulsion, blending, and bulk, and

solution processes.

Polyvinyl chloride copolymer means a synthetic thermoplastic polymer that is derived

from the simultaneous polymerization of vinyl chloride and another vinyl monomer such

as vinyl acetate. Polyvinyl chloride copolymer is produced by different processes,

including, but not limited to, suspension, dispersion/emulsion, bulkblending, and solution

processes.

Solution process means a process for producing polyvinyl chloride copolymer resin that

is characterized by the anhydrous formation of the polymer through precipitation.

Polymerization occurs in an organic solvent in the presence of an initiator where vinyl

chloride monomer and co-monomers are soluble in the solvent, but the polymer is not.

The PVC copolymer is a granule suspended in the solvent, which then precipitates out of

solution. Emulsifiers and suspending agents are not used in the solution process. PVC

Copolymer resins produced using the solution process are referred to as solution resins.
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 10

Type of resin means the broad classification of resin referring to the basic manufacturing

process for producing that resin, including, but not limited to, suspension,

dispersion/emulsion, blending, bulk, and solution processes.

D. New Source Implementation Date

Section 63.11870(c) of the proposed rule defines a new source as “one for which

construction is commenced on or after May 20, 2011 . . . .” 76 Fed. Reg. at 29563. One

commenter suggested that the starting date for affected new sources should be December 8,

2000, when EPA proposed the vacated PVC MACT.4 May 20, 2011 is the correct date, and the

commenter’s suggestion is based on a flawed understanding of the legal effect of vacatur.

When a court vacates an agency rule, “conditions [are] returned to the status quo ante.”5

The “status quo ante” means not only that regulated parties are no longer subject to the vacated

rule, but also that the ancillary legal effects of the agency’s promulgation of the rule are wiped

clean. In Environmental Defense v. Leavitt, the court held that a vacatur of a rule revived a cause

of action to compel EPA to meet its statutory obligations under the Clean Air Act:

“In American Corn, therefore, the court’s vacatur of EPA’s promulgations relating to the

BART Requirement restored the status quo before EPA promulgated those regulations.

That status quo presented a situation wherein EPA had failed to promulgate regulations in

accordance with the express deadline in § 7492(e)(1), despite its nondiscretionary,

statutory obligation to do so. Accordingly, American Corn returns EPA to a situation in

which this court has jurisdiction to compel EPA to promulgate regulations in accordance

with the BART Requirement.”6

Indeed, it was this very line of legal reasoning that supported the validity of the most recent

action to compel EPA to issue the current PVC MACT proposal.7

Section 112 of the Clean Air Act defines “new source” as “a stationary source the

construction or reconstruction of which is commenced after the Administrator first proposes

regulations under this section establishing an emission standard applicable to such source.”8

However, because of the court’s vacatur of the PVC MACT in Mossville Environmental Action

4

See Docket Document No. EPA-HQ-OAR-2002-0037-0150. Earthjustice represented Mossville Environmental

Action Now (MEAN) and the Sierra Club in Mossville Environmental Action Now, et al. v. EPA, 370 F.3d 1232

(D.C. Cir. 2004), and represented MEAN, Sierra Club, and Louisiana Environmental Action Network (LEAN) in

Mossville Environmental Action Now, et al. v. EPA, No. 1:08-cv-1803 (D.D.C. 2008).

5

Independent U.S. Tanker Owners Committee v. Dole, 809 F.2d 847, 855 (D.C. Cir. 1987). See also Sugar Cane

Growers Co-op. of Florida v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002).

6 Environmental Defense v. Leavitt, 329 F.Supp.2d 55, 64 (D.D.C. 2004) (memorandum opinion).

7 Mossville Environmental Action Now, et al. v. EPA, No. 1:08-cv-1803 (D.D.C. Oct. 22, 2008); see also Proposed

Settlement Agreement, Clean Air Act Citizen Suit; Notice of proposed settlement agreement; request for public

comment, 74. Fed. Reg. 58,995 (November 16, 2009).

8

42 U.S.C. § 7412(a)(4) (emphasis added).
Docket ID No. EPA-HQ-OAR-2002-0037

Supplemental Comments of the Vinyl Institute PVC MACT Working Group

September 12, 2011

Page 11

Now v. EPA,

9

it is as if EPA never proposed the PVC MACT. Thus, the Administrator first

proposed a regulation of major sources in the PVC and Copolymers Production source category

on May 20, 2011, and new major sources are only those constructed or reconstructed after that

date.

In addition, subsequent to the court’s decision in Mossville Environmental Action Now v.

EPA, the VI filed a petition for reconsideration arguing that vacatur was not appropriate or, in the

alternative, that the court should stay its mandate. Following the Court’s order to respond,

Mossville Environmental Action Now, Louisiana Environmental Action Network, and the Sierra

Club argued, in relevant part, that a vacatur was necessary to prevent EPA delay and would not

be disruptive because PVC facilities would remain subject to the Part 61 NESHAP. This

position is wholly inconsistent with and precludes the current commenter’s argument regarding

new source start dates. It is untenable to argue, on the one hand, that vacatur of the previous

rulemaking is an appropriate remedy since PVC facilities would remain subject to the NESHAP

and, almost a decade later, to argue that those very same facilities suddenly should be considered

new sources. Apart from the statutory and regulatory parameters, any contention that the 2011

proposed PVC MACT standards for new sources should apply retroactively to sources

constructed more than eleven years earlier raises serious questions of fundamental fairness and

due process.

E. Conclusion

We appreciate the agency’s consideration of these supplemental comments. If the agency

would like further discussion or clarification on any of these subjects, please do not hesitate to

contact us.

9 Mossville Environmental Action Now v. EPA, 370 F.3d 1232, 1243 (D.C. Cir. 2004) (“The Part 63 NESHAP is

vacated and remanded...”).