### 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, 2011SUPPLEMENTAL COMMENTS OF THE VI PVC MACT WORKING GROUP

On August 2, 2011, the Vinyl Institute (“VI”) PVC MACT Working Group (“Working Group”), 1 filed 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 New Sources

Existing 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 other

blending 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), 3 and 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, bulk blending , 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...”).