Bracewell & Giuliani LLP
Richard Alonso and Grant B. MacIntyre USA
May 16, 2014
The U.S. Environmental Protection Agency has proposed an expansive rule that would impose additional requirements at petroleum refineries. The proposed rule (which spans 813 pages) is scheduled to be published in the Federal Register, and interested parties will have 60 days from publication to file public comments.
The proposal is a response to a lawsuit from environmental and public health groups alleging that EPA missed statutory deadlines to review the existing refinery Maximum Achievable Control Technology (MACT) rules. EPA settled the litigation, agreeing to either propose additional regulations or propose a determination that additional regulations are not necessary. EPA has decided to propose additional regulations and is required to take final action on the proposal by April 17, 2015.
The proposal has several new requirements for petroleum refineries, including:
New requirements for:
- storage tanks, including expanding the universe of tanks required to comply with the most stringent level of controls
- flares, including the installation of new flare monitoring equipment that can monitor and adjust assist gas addition rates
- coking units, including new work practice standards for Delayed Coking Units
- Fenceline monitoring, data for which “will be made available to the public through the EPA’s electronic reporting and data retrieval portal…”
- An annual average Benzene concentration standard measured at the refinery fenceline
Notably, the rule also proposes to completely eliminate exemptions to emission limits during periods of startup, shutdown, and malfunction. Though EPA is proposing alternate standards during startup and shutdown for “a few select emission sources,” EPA expects “facilities can meet nearly all of the emission standards in Refinery MACT 1 and 2 during startup and shutdown, including the amendments [EPA is] proposing in this action.”
EPA also requires sources to comply with the standards during period of malfunction. EPA included affirmative defenses to malfunction violations in previous MACT rules. However, in light of a recent D.C. Circuit decision vacating the affirmative defense provision in the Portland Cement MACT (NRDC v. EPA, No. 10-1371 (D.C. Cir. April 18, 2014)), EPA did not include an affirmative defense in this rule, instead relying on its “case-by-case enforcement discretion to provide flexibility, as appropriate.”
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Alonso and Mr. MacIntre and may not reflect the opinions of Synergy Environmental, Inc., Bracewell & Giuliani LLP or either of those firms’ clients.
