Document qr653drkxXqvRQ12E90ZVLwq

KN KELLER AND H ECKMAN LLP Serving Business through law and Science 1001 G Street, N.W. Suite 500 West Washington, D.C. 20001 tel. 202.434.4l 00 fax 202.434.4646 June 18, 2012 Via Hand Delivery The Honorable Lisa P. Jackson Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Mail Code: 1101A Washington, DC 20460 Writer's Direct Access J ean-Cy r i l Walker (202) 4 34-4 181 walk c r@ khl aw. com Re: Petition of the Vinyl Institute, Inc. for Reconsideration and Request to Stay the Rule Pending Reconsideration; Docket ID No. EPA-HQ-OAR-2002-0037 Dear Administrator Jackson: On behalf of our client, the Vinyl Institute, Inc. ("VI") and its PVC MACT Working Group, please find enclosed a Petition for Reconsideration and Request to Stay the Rule Pending Reconsideration for the fina l National Emission Standardsfor Hazardous Air Pollutantsfor Polyvinyl Chloride and Copoly mers Production, 77 Fed. Reg. 22,848 (April 17, 20 12). VI commends the Agency and its staff for their professionalism, transparency, and diligence throughout the rulemaking process. VI also wishes to recognize the Agency's thorough review and consideration of information submitted during the course of this rulemaking. As with any sizeable undertaking, however, there remain some outstanding issues that must be addressed through the Agency' s Clean Air Act 307(d)(7)(B) reconsideration authority. Should you have any questions, please do not hesitate to contact me. Respectfully Submitted, ~ ~ff.~ Enclosures cc: Penny Lassiter, USEPA, Sector Policies and Programs Division Jodi Howard, USEPA, Office of Air Quality Planning and Standards Patricia Embrey, USEPA, Air and Radiation Law Office, EPA Office of General Counsel Mark Kataoka, USEPA, Air and Radiation Law Office, EPA Office of General Counsel Washington, D.C. Brussels San Francisco www. khlaw.com S han ghai BEFORE THE U.S. ENVIRONMENTAL PROTECTION AGENCY 1n re: National Emission Standards for ) Hazardous Air Pollutantsfor Polyvinyl ) Chloride and Copolymers Prod11ctio11, ) 77 Fed. Reg. 22,848 (April 17, 2012) ) Docket ID No. EPA-HQ-OAR-2002-0037 PETITION OF T HE VINYL INSTITUTE, INC. FOR RECONSIDERATION AND R EQUEST TO STAY THE RULE PEN DING RECONSIDERATION Vinyl Institute, Inc. 1737 Ki ng Street Suite 390 A lexandria, VA 22314 (571) 970-3400 Of Counsel: Peter L. de la Cruz Jean-Cyril Walker Crystal N. Skelton Keller and Heckman LLP 1001 G Street, N. W. Suite 500 West Washington, DC 2000 I (202) 434-4141 June 18, 2012 Docket ID No. EPA-HQ-OAR-2002-0037 Vi11y l lns1it111e Peti1io11 for Reconsideration and Request to S1ay the Rule Pending Reco11sideralion Table of Contents I. Introduction and Summary ................................................................................................................. 1 II. Reconsideration and Stay of Certain Provisions of the PVC MACT by EPA is Warranted ........ 4 III. Data Errors Mandate Reconsideration of the Process Wastewater TOHAP Limit....................... 5 A. Grounds for the Objection Arose After the Close ofthe Comme11t Period...................................... 6 B. It was Impracticable to Raise an Objection to the Process Wastewater Limit ................................ 7 C. TOHAP Data Does not Reflect Emissio11 Levels Actually Achieved................................................ 8 D. No11- Vinyl Chloride TOHAP Wastewater Floor Must be Recalculated to use Actual Sampling Data Reflecting Actual Operating Conditions............................................................... JJ IV. EPA Should Have set Process Vent Limits for Vent Gas Absorbers ("VGAs")........................... 12 A. Reconsideration of VGA-Specific Emission Limits is Warranted as EPA Failed to Review the Information it Deemed Necessmy hut Already had in its Possessio11 ......................... I 2 B. Subcategorization of VGA is Warranted. ....................................................................................... 13 C. MACT Floor Analysis/or VGAs .............................................. .................... ..................... ............. 14 V. Provisions Concernin g Bypasses From Closed Vent Systems Must be Revised ........................... 16 A. Bypass Provisions are Overbroad and Co,iflict With Equipment Opening Requirements ofthe Rule ...................................................................................................................................... 17 B. Requirements for Bypass Flow indicators. Car-Seals, or Locks and Keys are Beyond-the-Floor Requirements Whose Costs and Benefits Should Have Been Analyzed. ........... 20 C. Installation ofFlow Indicators, Car-Seals, or locks and Keys lo Prevent Bypasses is not Achievable and is Unnecessmy ..................................................................................................... 23 D. EPA Failed to Consider Equipme11t and Procedures Currently in Place to Address Bypasses .... 27 VI. Pressure Relief Device Requirements arc not Achievable and Must be Reconsidered ................ 29 A. PRD Releases From the PVC Jnd11sfly are h?fiequent. ofShort Duration. and Release Minimal Amounts ofHAP................................................ ................. ............................................. 30 B. All PVC Facilities Have Installed and use Effective Means to Promptly Detect and Record PRD Discharges for all of17,eir PRDs ............................................................................. 32 C. EPA s Release Indicators Provide no Added Benefit to Current lndushy Release Detection Methods at a Burdensome Cost............... ................................... ... ..................... ....... .... 33 VII. EPA Should Reconsider and Allow Leak Detection and Repair of Pressure Vessels ............... 36 A. LDAR is the Common Approach for Dealing With Leaks From Pressure Vessels........................ 37 B. Using LDAR on Pressure Vessel Leaks is the Only Achievable Approach.................................... 38 VIII. Vapor Balancing.............................................................................................................................. 39 A. Vapor Balancing is Widely Used in This Source Categaty ..................... ... ........... .................... .... 39 B. Vapor Balancing is a Proven Control Technology........................................................................ 39 C. Vapor Balancing Should be Explicitly Recognized in the Rule .................... ..... ............................ 40 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition for Reconsideration and Request to Stay the R11/e Pending Reconsiderotirm IX. Requirements for Combined Process Vents Must be Reconsidered .............................................. 40 A. It was Not Feasible to Comment 011 the New Data 011 Which EPA Based the Final Rule Requirements for Combi11ed Process Vents ............................. ...................................................... 40 B. The Applicable Scope ofthe Combined Process Ve11t Provision Merits Reco11sideratio11 Based 011 the Co,!flict B etween the Preamble Explanation and the language ofthe Final Rule ...................................................................................................................................... 41 X. The New Requirements for Emission Profiles are Overbroad and Must be Reconsidered.........42 A. It was Not Feasible to Comment 011 the Agency's New. Much Broader Approach i11 the Fi11al Rule 10 Emission Profiles ..................................................................................................... 43 B. EPA s Burden Assessment ofthe Expanded Profile Requireme11ts was Mistaken......................... 44 C. The Re vised D efi11ition ofContinuous Process Ve111 is Overbroad. Carries U11i11te11ded Co11sequences. a11d Must be Correc1ed ...................................................... .................................... 45 XI. Stay of the PVC MACT Pending Reconsideration is Warranted .................................................. 45 XII. Conclusion ......................................................................................................................................... 46 II Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl !11stiu11e Petitio11for Reconsideration and Request to Stay the Rule Pending Reconsideration EXHIBITS Exhibit Desc ription Exhibit I ........................................................................................................................................9 Exhibit II ........................................................................................................................................9 Exhibit III .... ..... ............. .......... ............ ......................................................... ... ................. ............. 11 Exhibit IV ............................................................ ............... ................... ........... .. ....... ........ .. .......... 13 Exhibit V ..... ................................................................................................................................. 16 Exhibit VI ...................................................................................................................................... 18 Exhibit VIJ .....................................................................................................................................26 Exhibit V III ....................................................................................................................................35 FIGURES Figure Figure I Figure 2 Figure 3 Description Comparison of VGA and The1mal Oxidizer Processes ............................................... 14 Vent Gas Absorber ("VGA") Sample Locations ......................................................... 15 Suspension and Dispersion Processes Flow Diagram: Process Vents ............... ..........25 TABLES Table T able 1 Table 2 Table 3 Table 4 Table 5 Table 6 Table 7 Table 8 Description Final PVC MACT Wastewater Stripper Outlet Concentration Limits ..........................8 Non-VC HAPs Repo1ted to EPA Before C lose of Comment Period .......................... IO Recalculated Wastewater Stripper Discharge Non-VC TOHAP Limitations ............. 11 Best Performing Facilities for Non-VC TOHAP ......................................................... 11 Bypass Vents, Valves, and Other Components ...........................................................27 Ambient Area Air Monitoring Systems .......................................................................28 Pressure Relief Devices and Releases Reported Over the Past Three Years...............31 PVC Industry Use of Vapor Balancing........................................................................39 Ill Docket 1D No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petitio11 for Reco11sideratio11 and Request to Stay the Rule Pe11di11g Reco11sideratio11 I. Introduction and Summary Pursuant to Section 307(d)(7)(B) of the C lean Air Act, 42 U.S.C. 7607(d)(7)(B), the Vinyl Institute ("VI"), on behalf of its PVC MACT Working Group ("Working Group"),1 hereby requests that the Adminjstrator of the U.S. Environmenta l Protection Agency ("EPA" or " Agency") recons ider and stay the implementation of specified provisions of the final National Emission Standards for Hazardous Air Pollutants for Polyvinyl Chloride and Copolymers Production (hereinafter, "PVC MACT") rule for major and area sources.1 Working Group members manufacture the majority of the U.S. production volume of homopolymer polyvinyl chloride (" PVC") and copolymer resins, and provided detailed comments to EPA's proposal to set Clean Air Act ("CAA" or " the Act") maximum achievable control technology ("MACT") emissions limitations for PVC and copolymer production facilities.1 After almost four years, several public meetings, hundreds of public comments, and over $12 million spent by Working Group members to collect emission data and respond to several Agency information requests, EPA issued its final PVC MACT rule on April 17, 2012. The Working Group commends the Agency and its staff for their professionalism, transparency, and diligence throughout the rulemaking process. The Working Group also wishes to recognize the Agency's thorough review and consideration of information submitted during the course of this rulemaking, including the infotmation contained in the Working Group comments on the proposai ,1 and the comments provided by other industry associations and the individual companies that produce PVC and copolymer resins.2 As with any sizeable undertaking, the Working Group has identified 50 or so ambiguities and issues of concern that must be addressed before the rule is implemented. Most of these issues can be resolved through Agency guidance and clarification, and the industry looks forward to working with EPA to resolve these outstanding questions. There remain, however, several errors, textual ambiguities or conflicts, and regulatory oversights that require substantive changes to the final PVC MACT rule, and thus, must be addressed now through the Agency's reconsideration authority: 1 Jn addition to Vinyl Institute ("Vl") 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-Vl members The 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 vi nyl packaging materials. 'l.. 77 Fed. Reg. 22,848 (April 17, 20 12). .1 Docket Document No. EPA-HQ-OAR-2002-0037-01 18, Co111111e111 sub111i11ed by .Jean-Cyril Walker, Keller and Heclmian LLP 011 behalfofThe Vinyl !11stit11te, PVC MACT Working Group. ~ Docket Document No. EPA-HQ-OAR-2002-0037-0 11 8; Docket Document No. EPA-HQ-OAR-2002-0037-0 146; Docket Document No. EPA-HQ-OAR-2002-0037-0168. i Docket Document No. EPA-HQ-OAR-2002-0037-0134; Docket Document No. EPA-HQ-OAR-2002-0037-0 139; Docket Document No. EPA-H Q-OAR-2002-0037-0154; Docket Document No. EPA-HQ-OAR-2002-0037-0142; Docket Document No. EPA-HQ-OAR-2002-0037-0 144; Docket Document No. EPA-HQ-OAR-2002-0037-0 I 5 1; Docket Document No. EPA-HQ-OAR-2002-0037-0 153; Docket Document No. EPA-HQ-OAR-2002-0037-0160. Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition for Reco11side ratio11 and Request to Stay the Rule Pe11di11g Reconsideration Process wastewater limit for non-vinyl chloride ("non-VC") total organic hazardous air pollutants ("TOHAP") - EPA changed its methodology for setting limits on non-VC TOHAPs in process wastewater after the close of the comment period. The Working Group does not object, in concept, to the new methodology, but EPA did not provide an opportunity to comment on the new approach, nor did the Agency request or use a sufficient amount of non-VC TOHAP analytical data to set the resultant limits. EPA had only nine HAP data points from industry responses to a survey question for use in setting the non-VC TOHAP limit, one of which was later found to have been inadve1tently obtained from outside the source category. Of the eight remaining data points, several were based on engineering estimates, and altogether addressed only three of the 30 listed HAPs regulated by the rule. Accordingly, the final process wastewater limits for TOHAPs, which decreased almost ten-fold from the proposed limit, from 1,000 parts per million ("ppm") to 110 ppm TOHAP at existing major sources, and to 0.018 ppm for existing area sources and all new sources, do not reflect the emissions limitations actually achieved by the five best performing facilities in the source category, as required by the Act. Vent gas absorbers ("VGA") - The Agency's TOHAP emission limits for process vents are based on the use of thennal oxidizers as the control device for process vent gas . ln their comments, the PVC industry had argued that the PVC MACT should take emissions rates into consideration when setting limits for VGAs because of the significant difference in flow rates between VGAs and thermal oxidizers. In the preamble to the final rule, EPA indicated that it had considered setting alternative formats for the process vent emission limits, but did not have sufficient data on process vent stream flow rates and concentrations to develop or evaluate other emission limit formats, such as mass emission rates for VGAs. Based on Working Group discussions with Agency staff during an April 18, 2012 meeting, it appears that EPA may have missed this infonnation, which was included in a spreadsheet responding to the Agency's Section 114 data collection request, and as such, limits for VGAs were not properly considered. Bypasses from closed vent systems - Under the final rule, the opening of valves and other equipment during routine maintenance activities and other operations, even after the rule's equipment clearing/opening procedures have been perfonned and associated emission limits a re met, constitutes a violation. The industry agrees in general that, as EPA states in its Summmy ofPublic Comments and Responses,!i no unauthorized release of a " regulated vent stream" from such equipment should be allowed. However, under the current regulatory text, it appears that a bypass would include the opening of valves and other equipment during routine maintenance and other operations, and each such bypass release is declared a "violation," regardless of the circumstances, even after the rule's equipment clearing/opening procedures have been perfonned such that the equ ipment or valve is no longer " in HAP service," as defined k Docket Document No. EPA-HQ-OAR-2002-0037-0185, at I0-26, S11111111my of Public Comments and R esponses, National Emission Standards f or Hazardous Air Pollutants for Polyviny l Chloride and Copolymer.1 Production. Februmy 2012. 2 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition for Reconsideration and Request to Stay the Rule Pending Reconsideration at Section 63. 12005. However, it is not reasonable or required under the CAA for EPA to promulgate a rule that prohibits routine maintenance and other operations on process equipment or vent systems. 1n addition, EPA should have considered and allowed the ongoing use of parametric and other monitoring equipment and practices at existing facilities, which provide near real-time notification of bypasses, including bypasses for maintenance, as an alternative to the apparent prohibition of maintenance bypasses and the required installation of f1ow monitors, key locks, or car-seals o n the hundreds or thousands of valves at a typical facility. Pressure relief device requirements - The fina l rule unnecessarily requires some form of li ft indication or flow detection, and alarms on all pressure relief devices ("PRD") to notify facility operators and determine the duration o f a PRD release after it has occurred. However, EPA failed to consider current equipment and practices at PVC faci li ties that are in place to prevent and provide immediate notice of PRD releases. ln addition, the Agency's economic analysis was fundamentally flawed, as it relied on unrealistic cost assumptions that s ignificantly undervalue the economic burden of this requirement. Leak detection but no repair for pressure vessels - Under the final rule, facilities must monitor pressure vessels such as storage spheres for leaks, but any detected leak is an automatic violation. This is contrary to a fundamental premise embedded in the Agency' s long-standing leak detection and repair (" LOAR") programs and other more recent MACT standards, that a leak is not considered a violation subject to enforcement if it is repaired within a defined timeframe. The Agency failed to identify any problems with existing LOAR programs for pressure vessels at PVC fac ilities or provide any rationale as to why PVC facilities should be treated differently from all other facilities w ith pressure vessels. Vapor balancing - T he final PVC MACT does not allow the indus try' s existing practice vapor balanc ing and venting of tanks back to the process during loading and unloading operations. EPA recommends this approach in recent MACT proposals, but the PVC MACT is inexplicably silent on this procedure. Overlapping rule requirements for control devices and emissions profiles on process vent streams - The rule requires facilities handling vent streams from multiple fac ilities to comply with the most stringent rule applicable to their common control device, whether it is the HON, the PVC MACT, or another rule. The rule is silent and EPA was unable to answer, however, whether the most st1ingent standard extends back to all source operations up to and including operating parameters or applies only to the control device em ission limits. Simi lar confusion surrounds EPA 's requirement that facilities develop emissions profiles for all process gas streams leaving each process component w hich vent to a control device. These matters are of central relevance to the implementation and enforcement of the PVC MACT, and will significantly hamper no,mal facility operations and compliance if left unaddressecl. 3 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl institute Petition for Reconsideration and Request to Stay the Rule Pending Reco11sideratio11 II. Reconsideration and Stay of Certain Provisions of the PVC MACT by EPA is Warranted Section 307(d)(7)(B) of the Act authorizes the Agency to reconsider a final rule under the CAA upon objection by a petitioner.1 The EPA has no choice, and the Act directs that the Administrator "shall convene a proceeding for reconsideration," if the petitioner can meet two statutory preconditions. First, petitioners must demonstrate either that it was impracticable to raise an objection during the public comment period, or that the grounds for such objection arose after the period for public comment (but within the time specified for judicial review). Second, the objection must be of central relevance to the outcome of the rule.11 Regardless of whether a request meets the preconditions for mandatory reconsideration, the Agency also may exercise its own discretion to reconsider a iule. Although Section I 12(d)(6) requires EPA to review and revise its MACT standards at least every eight years,2 "nothing prohibits EPA from reassessing its standards more often.,,.1.Q Indeed, the Agency has in the past reviewed issues that did not stti ctly qualify fo r mandatory reconsideration under its Section I I 2(d)(6) authority.ll Such review is particularly warranted where, as we discuss fu11her below, errors in the data underlying the rule have been uncovered, the promulgated limits do not reflect emission levels actually achieved by the best performing sources, or the Agency did not "exam ine the relevant data and articulate a satisfactory explanation for its action[s].''ll Federal agencies also "have an obligation to deal with newly acquired evidence in some reasonable fashion ,".Ll. and to reexamine the assumptions and approaches underlying a rulemaking ifthere is a change in "a significant factual predicate."ll This obligation rises to an imperative where, as here, the Agency itself identifies the data gaps that would have led it to consider a different approach or outcome. Considerations of practicability and whether petitioners had a meaningful oppo11unity to raise these issues prior to promulgation of the final rule also are relevant.u * 1 42 U.S.C. 7607(d)(7)(B). l! Id. * 2 42 U.S.C. 7412(d)(6). .I.!! Portland Cement Ass '11 v. EPA, 665 F.3d 177, 189 (D.C. Cir. 201 1). 1l See e.g., National Emission Standards for Hazardous Air Pollutants: Notice ofReco11sideratio11, 76 Fed. Reg. 15,266 (March 21, 2011). 12 Motor Vehicles Mfrs. Ass '11 v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 ( 1983). l..l. Portland Cement Ass '11, 665 F.3d al 187 (citing Catawba Cnty. v. EPA , 57 1 F.3d 20, 45 (D.C. Cir. 2009). l.:! Id. al 187 (citing Bechtel v. FCC, 957 F.2d 873, 88 I (D.C. Cir. 1992). il ICC v. Locomotive Engineers, 482 U.S. 270, 280 ( 1987). 4 Docket ID No. EPA-HQ-OAR-2002-0037 Viny l Institute Petition for Reconsideratio11 and Request to Stay the Rule Pe11di11g Reconsideration In this instance, the hundreds of pages of comments,.li! as well as the thousands of pages and megabytes of sampling data submitted by our small industry, not only reflect the complexity of this rulemaking, but also the limitations on our resources given the time constraints flaced on the Agency by the Settlement Agreement prescribing the schedule for this rulemaking.ll The Working Group very much appreciated the Agency's two-week extension of the comment period in response to our request for a 45-day extension. We also appreciated the Agency' s willingness to consider a limited amount of post-comment submissions and sampling data as both EPA and the Working Group continued to identify substantive issues w ith the rulemaking. Ultimately, the final rule would have benefitted from a deeper refinement that additional time would have allowed. Until EPA published its final rule, we were not able to "divine the agency' s unspoken thoughts."1.ft 1n some cases, those thoughts remain as shie lded now as they did during the rulemaking. Ultimately, the Agency needs to "get it right." "Reasoned decisionmaking is not a dispensable part of the administrative machine that can be blithely discarded even in pursuit of a laudable regulatory goal,"12 or an arbitrary schedule negotiated by third parties. Each of the issues raised by this petition involves some or all ofthe principles summarized above. For all ofthese reasons, and as detailed further below, the Working Group urges the Administrator to stay the effectiveness of the rule pending reconsideration of the issues specified in the next sections, and to "convene a proceeding for reconsideration.. .and provide the same procedural rights as would have been afforded had the info,mation been available at the time the rule was proposed."2.Q III. Data Errors Mandate Reconsideration of the Process Wastewater TOHAP Limit In its notice of proposed rulemaking,..21 EPA did not propose a MACT floor limit for total HAP in wastewater. Instead, EPA proposed as a beyond-the-floor "HAP emissions reduction approach," a 1,000 ppm by weight ("ppmw") threshold for total organic HAP (including vinyl chloride), above whkh facilities would have been required to comply w ith the wastewater provisions of the Hazardous Organic NESHAP ("HON").n Follow ing the close of the comment period, EPA rejected this approach for the final rule. The Agency decided that all process wastewater streams "must meet a limit for total non-vinyl chloride organic HAP that is .111 See Docket Document Nos. EPA-HQ-OAR-2002-0037-0 134; EPA-HQ-OAR-2002-0037-0139; EPA-HQ-OAR2002-0037-0 154; EPA-HQ-OAR-2002-0037-0142; EPA-HQ-OAR-2002-0037-0144; EPA-HQ-OAR-2002-00370151 ; EPA-HQ-OAR-2002-0037-0153; EPA-HQ-OAR-2002-0037-0160. 11 See Proposed Se1tle111e11t Ag ree111ent, Clean Air Act Citizen Suit, 74 Fed. Reg. 58,955 (Nov. 16, 2009). Jl Enviro11111e11tal Integrity Project v. EPA , 425 F.3d 992, 996 (D.C. Cir. 2005) (quoting Shell Oil. 950 F.2d 741 , 751 (D.C. Cir. 1991)). 12. Portland Ceme nt Ass '11, 665 F.3d at 188. ~ American Petrole11111 /11stit11te v. Costle, 665 F.2d 1176, 1192 (D.C. Cir. 1981) (citing 42 U.S.C. 7607(d)(7)(B)). 21 See Natio11al Emission Standards for Hazardous Air Pollutants f or Po~vvi11y l CMo ride and Copolymers Production; Proposed Rule, 76 Fed. Reg. 29,528 (May 20. 2011). ll 76 Fed. Reg. 29,586. 5 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl lnstitwe Petition/or Reconsideration and Request to Stay the Rule Pending Reconsideration significa ntly lower than the proposed 1,000 ppmw threshold."ll Specifical ly, EPA set a I IO ppmw TOHAP limit for process wastewaters at major sources, and a 0.018 ppmw for existing area sources and all new sources. A. Grounds for the Objection Arose After the Close ofthe Comment Period Reconsideration of the wastewater TOHAP limits is warranted because the grounds for such objection did no t arise until after the close of the public comment period. This factor raises concerns over the adequacy of notice and opportunity to comm ent on the final li m its. T he D.C. Circuit generally has held that "an agency's proposed rule and its final rule may differ only insofar as the latter is a ' logical outgrowth' of the forrner."21 A final rule is a " logical outgrowth" of a proposed rule "only if interested parties should have anticipated that the change was possible, and thus reasonably should have fi led their comments on the subj ect during the notice-and-comment periocl."22 Anticipating the change in a final rule does not mean that the public must "divine the agency's unspoken thoughts," nor did the Working Group.-2!! As noted above, EPA did not propose a MACT floor for total H AP in wastewater or solicit comment on such a limit. Indeed, the MACT floor background document only discusses the establishment of a floor for vinyl chloride.ll The N PRM gave no indication that EPA was cons idering any limit for wastewater HAP other than the 1000 ppmw threshold for HON requirements, as the Agency's only request for comments concerned maintenance wastewater: We are requesting comment 011 whether mai11/e11ance wastewater should have separate limits from i11process wastewater. We are also soliciting aclditio11al data relevant to selling a maintenance wastewater MACT stanclard.'ll! The industry did address EPA 's inquiry concerning maintenance wastewater. However, the Agency quite categorically and emphatically endorsed its HON-based approach for process wastewater, such that the fina l limit came as quite a surprise to the PVC industry: The analysis previously conductedfor the HON is applicable to PVC, because the cost-effectiveness ofwastewater treatment depends 011 the wastewaterjlow and HAP concentration, 110 1 011 tire type ofprocess unitfrom which tire wastewater stream is generated. The same treatment systems (steam stripping or biotreatme111), and tire same measures to prevent atmospheric emissionsfrom the ll Docket Document No. EPA-HQ-OAR-2002-0037-0185. at 13-69 to 13-70. ~ See 111'/ 'I lmegrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (applicable test is "whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule"). !1 Northeast Maryland Waste Disposal Auth. ,,. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004). ~ Envt 'I lntegri~v Project ,,. EPA, 425 F.3d at 996 (citing Ari:ona Pub. Se111 Co. v. EPA, 211 F.3d 1280, 1299 (D.C. Cir. 2000)). ~ Docket Document No. EPA-HQ-OAR-2002-0037-0100, at 20-23, and Attachment C, Me111orand11111fro111 Eastern Research Group. Inc. (ERG) to J. Howard, USEPA Subject: MACT Floor Ana(vsisfor the Po(v,inyl Cl,/oride and Copolymers (PVC) Production Source Categor:v. April 11, 2011. ~ 76 Fed. Reg. 29,550. 6 Docket lD No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition/or Reconsideration and Request to Swy the Rule Pendiug Reconsideration systems conveying the wastewater streams to the treatment systems, are applicable to wastewater streams that meet these criteria. Furthermore, 35 percent ofPVC production facilities are co-located with chemical ma1111fact11ri11g process units that are subject to the HON, and could potentially ro11le PVC wastewater streams (ifany) that meet the total HAP criteria to existing H ON wastewater treatment processes to meet these limits ... Based 011 information s11bmitted by PVC production facilities, we are not aware ofany waste1mter streamsfrom affected sources that are above theseflow rate and concentration limils...However, the limit will ensure that, ifthere are any wastewater streams meeting the total HAP andflow rate criteria, they will be controlled. 29 C riti cally, whe n the PVC industry met with EPA on June 30, 20 11 , to discuss the proposed rule and the Agency's additional data needs, the industry unde rs tood that Agency staff was only requesting additional data for vinyl chloride in wastewater. Indeed, the bulk of the wastewater discussion focused on developing sufficient data for a vinyl chloride limit. At the time, EPA gave no indication that it intended to cha nge its approach to regulating total HAP in wastewater and impose a m uch lower limit of 110 ppmw for existing maj or sources, a nd 0.0 18 ppmw for existing area sources and all new sources. Industry had no notice of, or opportunity to comment on, the new approach. The ultimate TO HAP limits of 110 ppmw at existing major sources, and 0.0 18 ppmw for existing area sources and all new sources came as quite a surprise to the PVC industry. B. i t was Impracticable to Raise an Objection to the Process Wastewater limit Separate fro m the adequacy of notice, the D.C. Circuit has specifically ad d ressed the bounds of the practicability for raising an objection that compels reconsideration: While we certainly require some degree offoresight 011 the part o.fcommenlers, we do not require telepathy. We should be especially reluctant to require advocatesfor affected industries and groups to anticipate eve,y contingency. To hold othen vise would encourage strategic vagueness 011 the part ofage11cies and overly defensive, excessive commentary on the part ofinterested parties seeking to preserve all possible options for appeal. Neither response well serves the administrative process.JQ It is important to note that Working Group objections to the wastewater TOHA P lim it are rather narrow. We support EPA's conceptual approach and calculation method for setting the process wastewater limits in the final rule, and only object to the incorrect and insufficient number of data points selected a nd used to calculate the limit. Following publication of the final rule, Working Group members examined the underlying data and found s ignificant errors a nd issues with the very limited data set used by EPA. It is at this po int that notice and practicability overlap. Had the Agency proposed the TOHAP lim it and provided its floor calculations during the public comme nt pe ri od, it is likely that industry members would have spotted the data gaps and mistakes and collected the appropriate additional sampling infonn a tion to buttress the ~ 76 Fed. Reg. 29,549. .!!l Portland Ccme/11 Ass 11, 665 F.3d at 186. 7 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition f or Reco11sideratio11 and Request to Stay the Rule Pending Reconsideration record. Or, if EPA had indicated during our June 30, 201 1 meeting that TOH APs in wastewater were an issue, additional testing might have been conducted. After all, the industry did provide four years of additional vinyl ch loride wastewater data to EPA with its comments on the proposed rule. Without the Agency's calculations in hand, however, it was not possible to readily identify the incorrect data points and incorrect data uses that are discussed in greater detail in the next section. The length and scope of the industry comments are evidence of a tremendous industry effort to provide the Agency w ith the appropriate data needed to successfully complete this mlemaking. The accompanying data submiss ions, which were planned, collected, analyzed, and repo,ted over the mere 10 weeks allocated for public comment, speak to the impracticability of anticipating the TOHAP contingency, pa1ticularly in the absence of any hint from EPA. This is not to fault the Agency's efforts in this mlemaking, particularly given its obligations to promulgate several other MACTs within the same time frame. The fact remains, however, that as discussed further in the next section, the final wastewater TOHAP limits deviate from the CAA 11 2(d)(3) requirement that MACT floors must be based on emission levels actually achieved by the best perfonning sources in the source category. As such, the administrative record does not suppo1t a conclusion that the fac ilities selected for the Agency' s floor calculations represent the best performing sources in the industry. C. TOHAP Data Does not Reflect Emission Levels Actually Achieved The Working Group was unable to locate any rationale for the change in TOHAP limit in any of the background documents released to the docket.21 The closest d iscussion on point, which can be found at pages 13-69 of the Summa,y ofPublic Cornments and Responses, National Emission Standards for Hazardous Air Pollutants for Polyvinyl Chloride and Copolymers Production, suggests that the Agency fai led to first develop a wastewater MACT floor before seeking to impose the HON requ irements as a beyond-the-floor limit.32 For the final rule, the Agency calculated a non-vinyl chloride total organic HAP limit for process wastewater, based on non-VC organic HAP data reported by PVC faci lities in response to the Section 114 Request and using the same calculation methodology used to determine the limit for vinyl chloride. The resulting limits are as fo llows: On its face, the 0.018 non-VC TOHAP limit for existing area sources and all new sources should have been an immediate red flag to EPA, as it was to the PVC industry, that a problem ex ists with the data. T he TOHAP limit for existing sources is one order of magnitude higher l1 See. e.g. , Docket Document No. EPA-HQ-OAR-2002-0037-0 193, Memora11d11mfrom Eastern Research Croup, Inc. to Jodi Howard. USEPA, Subject: Revised Maximum Achievable Control Technology (MAC7) Floor A 11a~vsis f or the Po~vvinyl CMoride and Copolymers (P VC) Production Source Categ01y, Februa,y 8, 2012 . J1 See Docket Document No. EPA-HQ-OAR-2002-0037-0185, at I3-69 to 13-70. 8 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl lns1i1111e Petilionfor Reco11sideratio11 and Request to Stay the Rule Pending Reconsideration than the VC limit, yet the TOHAP limit for new and area sources, which uses the same stripping technology, is two orders of magnitude less than the VC limit. Working Group members reviewed the Microsoft ExcelTM spreadsheet EPA used to calculate the wastewater limits, and dete1mined that the 0.018 ppmw value used to set the new source wastewater TOHAP limit had been reported by an area source facility. Upon further review of the source of this data point, the facility determined that it had inadvertently repo rted the value for a single analyte from a groundwater remediation stripper located next to its PVC plant rather than from the PVC wastewater stripper at the facility. See Exhibit I. Consequently, as previously communicated to the Agency, the 0.01 8 ppm by volume ("ppmv") data point is not valid for use in setting a MACT emissions limit for PVC faci lities. The other few data points EPA used to calculate the TOHAP limit also do not reflect the emission levels actually achieved by the industry. The Agency calculated MACT floors for total non-VC organic HAP in wastewater us ing data from Sheet K-3-b of its Section 114 Survey..1.1 The info1mation requested by EPA, and provided by PVC facilities in most instances, was for 2008 data on hand. Signi ficantly, the Agency did not ask for new sampling and analysis for wastewater HAPs. In this regard, it is important to remember that compliance with the Part 6 1 Vinyl Chloride N ESHAP applicable to all PVC faci lities did not require the collection of nonVC data. Thus, any non-VC wastewater HAP data collected by PVC facilities would be limited to those few HAPs that may be of interest for a particular purpose, such as product quality control, meeting an existing pe1mit limit, or to support a permit modification or renewal application. Nor was the industry aware of the use EPA intended for this data untiI EPA released the final rule. As the table below indicates, the scarcity of non-VC HAP data available to EPA is quite apparent when the " Baseline and Reduction Estimate" tab of EPA's wastewater spreadsheet is examined. In sh01t, EPA had only six repo1ted values (includ ing the invalid 0.0 18 ppmw value for Oxy Vinyls Deer Park) for only three of the 30 HAPs the Agency's non-VC TOHA P limit is intended to address. (M IBK reported for the Shintech facilit ies is a s ite-speci fie HAP which is not on the list of 30 HAPs E PA identified in Table IOof the final rule.) Critically, and as Table 2 indicates, most of these values do not reflect actual samples o f PVC facility wastcwaters, taken during actual operations. Nor is it clear that the facilities reporting represent the best performing facilities in the industry. The Working Group is aware of at least one company that submitted wastewatersampling data in September 20 I0, covering a site-specific list o f 20 HAPs for one or its facilities,H but EPA did not use this data in calculating the floors. See Exhibit II . It is not clear whether the Agency overlooked the data because the data set is not addressed in the background documents to the final rule. Table 2 clearly indicates, however, that EPA should have accounted fo r other HA Ps identified in the September 20 IO data set, such as acetophenone, chloroethane, chloroform, and fonnaldehyde, when setting the final non-VC TOHAP limit. ll Docket Document No.EPA-HQ-OAR-2002-0037-0193, at 38, 41-42. .!:! The wastewater stripper in question is from the OxyVinyls, LP's Pa'iadcna, TX facili ty. The submission also included cent rate wastewater data from the OxyVinyls, LP's Pedricktown, NJ faci lity, which is not relevant here. 9 Docket lD No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition for Reco11sideratio11 and Request to Stay the Rule Pending Reco11sideration Table 2: Non-VC HAPs Reported to EPA Before Close of Comment Period (in ppmw) Com an & Facilit .t"ffl"-'ffl""G..m. "'M"":".IDBIJtlrl,61,hli.GIImill Chloroethane letnmuu,,I Formaldeh de 0.3 NA NA NA NA 0 .0 1 8 alculated average EDC trend data from 2005 le with all constituents below detection limit 40 39 40 2.26 026 0.259 0.3 0 .844 0.0027 656 - 0.01 0.0028 858 - xyVinyls Pasadena I 8.37 0 .0 8 5 ND 806 ND 490 - ND 0.0026 265 - 2.11 ND 620 - S,te-snecific HAP ND 0.0028 ND ND 0.0058 ND ND 0.0043 ND ND ND ND 5 .22 9 . 11 4.79 9 .01 9 . 19 9 .95 0 .0 2 5 ND 0.162 0 .0 8 5 ND ND ' 't L..1v~11,u1 ,vv::i December 29, 2009 Januarv 6, 2010 January 12, 201( January 19, 2010 ..All six samples taken during 30-da test period in response to EPA 114 IAIIA ~ The Formosa Specialty PVC ("SPVC") facility in Point Comfort, TX, submitted a response to the Section 114 Survey, but was not operating during the Section 114 sampling period. SPVC should be included on reconsideration as it is an exisiting PVC Unit that is currently operating. 10 Docket ID No. EPA-HQ -OAR-2002-0037 Vinyl fllstitute Petition for Reco11sideratio11 and Request to Stay the Rule Pe11di11g Reconsideration The addition of a few more HAPs from just one facility would have resulted in a significant change in the non-VC TOHAP limits, confirming that the fi nal non-VC TO HAP limjt does not reflect emissions limitations actually achieved by the best performing facilities. It is important to note that this data set does not include the majority of facilities in the industry. When an even larger set of data is evaluated, as illustrated in Sectio n D, it is abundantly clear that the TOHAP limits for new and existing sources do not comport w ith the Clean Air Act as they do not reflect emission levels actually achieved by the best performing sources. D. Non-Viny l Chloride TOHAP Wastewater Floor Must be Recalculated to use Actual Sampling Data Reflecting Actual Op erating Conditions Recognizing the limitations of the non-VC TOHAP data set summarized above, Working Group members decided to sample their wastewater stripper(s) bottom discharge for all 30 HAPs listed by EPA in the final rule. Samples were collected and analyzed using the test methods specified by EPA in the final rnle. Given the limjted time to fi le this petition, not all facilities could fully participate in this exercise. Where possible, existing data from other wastewater tests also was included. At a minimum, the database accompanying this petition as Exhibit Ill demonstrates that the data used by EPA to calculate non-VC TOHAP limits significantly underreported the HAPs in PVC facility process wastewaters. T hat data has been reviewed and analyzed for the top five performers, and subsequentl y utilized to calculate a statistically derived upper predictive limit (" UPL") value using EPA's methodology. The Working Group' s recalculated wastewater stripper discharge non-VC TOHAP limitations are set out in Table 3, and better reflect the emissions limitations actually achjeved by the best performers in the indus try. Indeed, Table 4 illustrates how the array o f fi ve best performing facilities has changed with this more expansive data set. .. .... ... . . Ta ble ,~ 4: .., B" est,Per.forming Facilities for Non-VG TOHAP OxvVinvls - Deer Park PolvOne - Henrv Formosa - Baton Rouoe Westlake - Calvert Citv Shintech - Freeoort Shintech - Addis Formosa - SPVC OxvVinvls - Deer Park Westlake - Calvert Citv PolvOne - Pedricktown The values set out above are not submitted as replacement limits, but rather to illustrate the extent to which the wastewater non-VC TOHAP limits of the final rnle do not refl ect the emissions limitations actually achieved by the fi ve best performing faci lities, assum ing for the sake of illustration that the OxyVinyls ' area source should appropriately be included in the MACT floor calculation. T he wastewater samples and calculations underly ing these values are I I Docket 1D No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition for Reconsideration and Request to Stay the Rule Pending Reco11sideratio11 the most comprehensive data set that Working Group members could collect between issuance of the final ru le and the deadline for filing this petition. Working Group me mbers expect that additional data would be obtained to address any Agency data gaps during reconsideration. The Excel spreadsheets explaining this evaluation are included in the separate electron ic submit1al to EPA, and in Exhibit Ill. Against this backdrop, it is evident that EPA did not fu lfill its obligations to base the MACT floor on actual emissions data reflecting actual operational performance.J.Q As the Agency has not demonstrated that these limits are actually achieved and the grounds for objecting to the final limits arose after the close of the public comment period, reconsideration o f the wastewater stripper discharge non-VC TOHAP limits is warranted and required under the Act. IV. EPA Should Have set Process Vent Limits for Vent Gas Absorbers ("VGAs") The Working Group concurs with and suppo,ts the petition for reconsideration on this issue filed by PolyOne Corporation. The final PVC MACT limits for process vents are based on the use of thermal ox idizers as the control device. Three PVC faci lities, however, use vent gas absorption (" VGA") as vinyl chloride monomer ("VCM") recovery systems,ll which represent a radically different technology for controlling emissions from these streams. Thus, in their comments on the proposed rule, the Working Group argued that the Agency should recognize that VGAs are a " recovery" control technology, and requested that VGAs be regulated as a separate subcategory w ith equivalent MACT floor performance limits based on mass emission rates.ll A. Reconsideration ofVGA-Specific 111ission Li111its is Warranted as EPA Failed to Review the Information it Deemed Necessa,y but Already had in its Possession In the preamble to the fina l PVC MACT, EPA acknowledges the VGAs recovery functio n and noted that it did consider: ...setting altemative.formatsfor the process vent emission limits. However. we did not have St!fficient il!{ormation p rovided ji-om ind11sfly on p rocess vent stream flow rates and concentrations to develop or evaluate otherformats, sue!, as mass emission rates."J51 In fact, contrary to E PA's claimed lack of information , data on stream flow rates a nd concentrations for all process vents were provided to EPA as part of the res ponse to the Agency's Section 114 Request. Flow rate and concentration for each device, including data for VGAs, can be found in the various EPA spreadsheets submitted as part of each PVC fac ility's .:. Mossville 11viro11111e111al Action Now v. EPA, 370 F.3d 1232, 1242 (D.C. Cir. 2004) (in setting the MACT floor, EPA must "support its decision with record data that shows the connection between its MACT floor and the top performing plants"). ll VGAs arc located al the PolyOne facilities at Pcdricktown, NJ and Henry, IL The OxyVinyls faci lity at Pedricktown, NJ shares the VGA at PolyOne's Pedricktown facility. .!! Docket Document No. EPA-HQ-OAR-2002-0037-0 146, at 52. ll 77 Fed. Reg. 22,869. 12 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl l11stit11te Petition for Reconsideration and Request to Stay the Rule Pending Reconsideration stack sampling submission and posted to the rulemaking docket as Document No. EPA-HQOAR-2002-0037-0107. The c ha rt included as Exhibit IV identifies the location of the flow rate and concentration data for each faci lity by Spreadsheet Name, Worksheet Name, and Cell Range. An extensive repo,1 of the stack sampling performed at each PVC facil ity also was prepared by industry, describing in detail the sampling locations, quality assurance and quality control steps, and sample collection and analytical procedures. These reports, which were submitted as part of each Working Group member' s Section 114 response, but do not appear in the docket, also provided flow rate and concentration information, including total hydrocarbons ('THC"). Given the amount of data submitted and available to EPA, it was arbitrary and capricious for the Agency not to have considered creating a process vent subcategory for VGAs. Accordingly, EPA should reconsider the industry's request to subcategorize VGAs. B. Subcategorization ofVGA is Warranted Section 112(d)( I) of the Act authorizes EPA to "distinguish among classes, types and sizes of sources within a category or subcategory."40 In addition, subsections l 12(d)(2) and (3) pervasively refer to standards for sources in each "category or subcategory." Thus, it is appropriate for EPA to subcatego,ize process vent limits by d ifferences in devices, provided such categorization is reasonable. In this instance, subcategorization is not only reasonable; it is necessary to prevent a manifest injustice. The VGAs at both PolyOne facilities were installed to meet the requirements of the Part 6 1 Vinyl Chloride NESHAP. As described in the PolyOne petition for reconsideration, the VGA uses cold isooctane to absorb the residual VCM supplied by the closed vent system, then heats the isooctane to remove the VCM from the isooctane, and condenses and returns the VCM back into the production process. The hot isooctane is cooled for reuse to absorb more VCM. The isooctane is the absorption media and is continuously reused within the VGA. As a resul t, the VGA effectively reuses 99.9% of the VCM entering the unit, as illustrated below. U nlike a thermal oxidizer, VGAs are not combustion devices and, accordingly, have significantly different emissions to the atmosphere. Dioxins, HCI, and greenhouse gases are not produced or released by this technology; isooctane is the measureable component in the THC measurement. Critically, the outflow from the VGA is inte,mittent and occurs at a very low rate. In contrast, the outlet volume flow from a the,mal oxidizer is more than 100 times that from a VGA or 13.4+ dry standard cubic meters per minute ("dscmm") versus 0.078 1 dscmm, respectively_il As a result, the concentration value or ppm volumetric dry ("ppmvd") for all HAPs or THC measured from intennittent VGA emissions is very high, but the actual mass emission rate is extreme ly low. More impo11antly, the emission profile of the two technologies varies significantly. Whereas the HAPs emitted from the thermal oxidizer include dioxins, HCI, and greenhouse gases, among others, the emission composition of a VGA is limited to isooctane w ith minor contaminants ofVCM and chloroethane. :!Q 42 U.S.C. 74 I2(d}(l ); see also Sierra Cl11b v. EPA, 479 F.3d 875, 885 (D.C. Cir. 2007). :ll Based on the concentration database used for the MACT limit calculations. 13 Docket fD No. EPA-HQ-OAR-2002-0037 Vinyl lnstitwe Petitionfor Reconsideration and Request 10 Stay the Rule Pending Reco11sideratio11 VGA T echnology generates a different emission profile 1J1f Cl E-- ) ,. I ilH ! .... Cl ~ LEJ Figure I: Comparison of VGA and Thermal Oxidizer P rocesses ln short, EPA should not apply limits based on combustion technology to a noncombus tion recovery device. Stating total HAP or T HC emissions in terms o f mass flow is a more accurate and technically sound way of measuring perfom1ance and setting compliance limits for a VGA. C. MACT Floor Analysis for VGAs The PVC MACT process vent emission limits are presented in volumetric units corrected to 3 percent oxygen (" 3% 0 2"). The application of the 3% 0 2 correction factor to e missions from a VGA, however, conflicts with the Agency's direction in the final rule that an 0 2 correction factor should not be applied to emissions from non-combustion devices.:!2 According to the Agency, application of the 3% 0 2factor was reasonable because: Correction ofpollutant concentrations to specified percent oxygen 11ormali=es emissions data and allows for comparison ofconcentrations from sources witIt va,yi11g oxygen concentrations in tl,e emission stream. A/tl,ougl, typically applicable to combustion sources, such as tl,ermal oxidizers, concentration correction for oxygen also applies to the use of VGA :,ystems, sue/, as those located of{sic} the PolyOnefacilities as oxygen concentrations variedfrom 12.5 percent to 19.5.Sl :U See 77 Fed. Reg. 22,923 (codified at 40 C.F.R. 63.l 1945(d), (d)(3)). :U Docket Document No. EPA-HQ-OAR-2002-0037-0 I93, at 37. 14 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition for Reco11sideratio11 and Request to Stay the Rule Pe11di11g Reco11sideratio11 The Agency's rationale is incorrect in this instance. The 3% 0 2 correction is drawn from the HON and is inte nded to allow the addition of supple mental combustion air, but only provides credit for the amount needed for proper combustion. According to EPA, " this co1Tection was not intended to apply to other types of control devices:"44 The value of3 percent originates from good engineering practices. For oxygen deficient streams, ifthe proper amount ofsupplemental combustion air is added, tl,e outlet stream would contain approximately 3 percent oxygen. Typica//y, SOCMl /acilities have low oxygen. l,igl, VOCIHAP concentration streams that generally require supplemental combustion air when they are combusted. T'1erefore, a correction to prevent dilution was needed in rules/or the SOCMI induslly.~ An oxygen correction is unwarranted for the VGAs because the VGA stream is not a combustion process, and thus no air needs to be added to overcome any possible oxygen deficiency. Any reported oxygen fluctuation is an arti fact of the sampling point operation. Unlike in the combustion scenario, oxygen is not added upstream of the VGA, either because o f an upset condition or intentionally to promote combustion. As the chart below illustrates, back drafting air from the vent stack control valve can cause 0 2 levels detected at the sampling point to fluctuate from 12- l 5% up to 20% . POLYONE CORPORATION PEORICKTOWN. NEW JERSEY , O'-""""tt - -~ I! ........ ..... - -.::: . I VENT GAS ABSORBER INLET Controlvalve at top of column / I - - - . ~,-\ 'fl' l flf('lV ro- o,a11 \."" VENT GAS ABSORBER OUTLET Figure 2: Vent Gas Absorber (''VGA") Sample Locations :!:! See National Emission Standtmlsfor Hazardom Air Pol/11wn1s (NESHAP) for Pesticide Actini Ingredient Production: S11111111a1y ofPublic Co111111e111s and Re~po11ses, p. 15-3, EPA-453/R-98-011 (May 1999). ~ Id. 15 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl l11stit11te Petition for Reconsideration and Request to Stay the Rule Pending Reconsideration Thus, application of the correction factor is unwarTanted. We understand that PolyOne submitted a si milar diagram to EPA with its stack test rep011 in February 20 10, and so the Agency should not have applied the 3% 0 2 to the VGA data. We would expect on reconsiderati on that use of a mass flow limit would obviate the need for the 0 2 correction. Accordingly, we are resubmitting as Exhibit V, the data provided as part of the concentration database from Po lyOne, which includes THC results during the stack test. THC data were collected every minute during the three four-hour tests. The average of each run was reported. PolyOne and the Working Group bel ieve these data should be used to calculate a limit specifically for this unique technology. Using these data, the calculated limits would be: THC 2.0 lb/hr max 3-hr block average Because the Agency fai led to consider information in its possession regarding the different control technology represented by VGAs, because subcategorization based on differences in control devices is warranted, and based on the prel iminary profile of the MACT floor presented here, EPA must grant reconsideration on this topic and unde11ake a corrective rulemaking. V. Provisions Concerning Bypasses From Closed Vent Systems Must be Revised T he final PVC MACT ru le seeks to "ensure that emissions streams are properly routed to the closed vent system and delivered to the contro l device for reduction," 46 before any release to the atmosphere. Accordingly, the final rule prohibits any "bypass" or d ivers ion o[ such emissions from a contrnl device. In EPA's view, most bypasses are caused by malfunctions, poor design, operator error, or similar incidents, and thus, exempting such occurrences from the requirement that MACT standards apply continuously is not justified. In order to ensure that PVC operators detect and identify bypasses, EPA is requi1ing the installation of a bypass flow indicator on valves and other components that are capable of diverting a regulated vent s tream away from the control device directly to the atmosphere. In the alternative, faci lities can use a car-seal or lock-and-key to secure valves and other components in a non-diverting position, subject to monthly insp ections and recordkeeping. There are thousands of valves and other pieces of equipment at each PVC facility that are covered by these requirements. Many are used frequently as part of norma l operations or periodic maintenance activities after equipment opening requirements for evacuating the equipment have been met. Yet EPA has completely overlooked the impact of the bypass provisions on legitimate maintenance activ ities. As the final rule is currently worded, no maintenance activity involving the opening o[ these valves or other pieces of equipment can be performed w ithout violating the Act, even if the vent stream is no longer in HAP service o r otherwise regulated. Accordingly, reconsideration is warranted to resolve the textual conflict between the bypass provis ions and the equipment opening requirements of the final rule. Nowhere in the proposed or fina l rule, or the voluminous background documents does EPA provide a ratio nale for, or assess the cost/benefit of, requiring the installation of flow 12 Docket Document No. EPA-HQ-OAR-2002-0037-0 185, at I0-25. 16 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition f or Reconsideration and Request to Stay the Rule Pending Reconsideration indicators, key locks, or car-seals on the thousands of covered components at PVC faci lities in what is clearly a beyond-the-floor requirement. In addition, ambient air monitoring systems and procedures currently required of the industry effectively provide the real-time indication EPA seeks with flow indicators, and certainly more timely notification that an unauthorized emission event has taken place than month ly inspections now imposed in the final rule. Yet the Agency refused to consider the effectiveness of these existing, in-place systems. Such a refusal is arbitrary and capricious and a violation of the Act. Accordingly, reconsideration of the flow indicator, key lock, or car-seal requirement is warranted, as discussed fu1ther below. Manual vent valve discharges have always been prohibited under the VCM NESHAP.47 The Agency has long recognized, however, that the PVC industry operates as a batch process, which necessitates frequent eqursment openjngs, and thus included an equipment-opening standard in the VCM NESHA P.~ The Agency correctly applied these practical cons iderations to the final PVC MACT: In thefinal rule we are setting standards.for this emission source based 011 vinyl chloride because the part 61 NESHAP, which constitutes the MACTfloor level of control for reactor and equipment openings. requires work practices to specifica!ly control vinyl chloride emissions. ft is appropriate to continue to set the standards based on vinyl chloride because it will always be present at this emission point, and co11tro!ling it will control all other HAP.49 In contrast, the Agency's current approach lo bypasses stems from its view that the decision in Sierra Club v. EPA, 55 1 F.3d 1019 ( D.C. Cir. 2008) requires the Agency to ensure that MACT emissions limitations apply continuous ly.lQ Even so, Sierra Club in no way prorubits EPA from set1ing work practice standards to function as continuous emissions contrnls in those situations, such as the equipment opening and other normal batch operations, where the criteria for setting work practice standards has been met. Indeed, EPA recognized the need to address batch operations in the final PVC MACT, but effectively negated the equ ipment opening standard with regulatory language that makes opening any valve under any circumstance a violation of the Act. Such a c lear conflict in regulatory language mandates reconsideration by the Agency. A. Bypass Provisions are Overbroad and Conflict With Equipment Opening Requirements ofthe Rule Section 63. 11955 of the final rule governing equipment openings requires that almost all of the HAPs be evacuated from the equipment before it is opened. Specifically: Before opening any process component (including pre-poly merization reactors used in the ma1111.facture ofbulk resins) for any reason, the quantity o.f vinyl chloride must be reduced to an amount that occupies a volume of110 more than :!1 40 C.F.R. ~ 6 I .64(a)(3). il 40 C.F.R. 6 l.65(b)(6). :!2 77 Fed. Reg. 22,885. ~ 77 Fed. Reg. 22,895. 17 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl fllstit11te Petition for Reconsideration and Request to Stay the Rule Pending Reco11sideration 2.0 percent ofthe component's or equipment's containment volume, or 25 gallons, whichever is larger, at standard temperature and p ressure. 51 The te1m "process component" is defined broadly and includes the term "equipment," which is defined to include "each pump, compressor, agitator, pressure relie f device, sampling connection system, open-ended valve or line, valve, connector and instrumentation system in HAP service ..."52 Paragraph (c) o f Section 63 .1 1955 requires that "gas or vapor HAP removed from a process component in accordance with paragraphs (a) and (b) of this sectio n must be vented to a closed vent system and control device meeting the requirements of 63. 11925 through 63. 11 950" before opening. As a result o f the VCM NESHAP requirements, the longstanding practice in the PVC industry has been to clear PVC process equipment using either a vacuum system, nitrogen sweep, or hydraulic displacement, and then vent all of the regulated " waste gas" or "exhaust gas" streams to the control device before the equipment is opened to atmosphere. included as Exhibit VI is a general ized procedure for removing a VCM filter at a typical PVC facility. As long as these requirements were followed , an operator could open and maintain his equipment in compliance with the Act. The PVC MACT rule eITectively adopted these NESHAP equipment opening requirements, and thus, opening valves on a process component to perfonn routine maintenance, or accessing sampling points or sampling connectors after clearing the process component of HAP in accordance with Section 63.1 I 955, should not now constitute a violation of the Act. As noted above, work practice standards are appropriate where a HAP "cannot be em itted through a conveyance designed and constructed to emit or capture such po llutant, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, State or local law."il C learly, residual HAP present at the time of equipment and valve openings used for batch and maintenance operations cannot be routed to a control device, hence the need for standards and procedures to ensure the equipment or valve no longer is in HAP service before opening. EPA creates s ignificant confusion, however, when it states that: ...most bypassesfrom closed vent systems are caused by 111alf1111ctio11s or other occurrences (e.g., poor design, improper maintenance, or operational error) that do notjustify an exemption from standards that, under the CAA, apply continuously....each closed vent system must be designed and operated both to collect any gas or vapor HAP from each continuous process vent, miscellaneous process vent and bate/, process vent, or process component, and to route the collected vapors to a control device, regardless o f whether the closed vent system is "i11 HAP service. ,..H ll 40 C.F.R. 63. l l 955(a) (emphasis added). ~ 77 Fed. Reg. 22,937 (to be codified al 63.12005). il 42 U.S.C. 74 l 2(h)(2)(A). H Docket Document No. EPA-HQ-OAR-2002-0037-0 185, at 10-30 to 10-31; 77 Fed. Reg. 22,858. 18 Docket ID No. EPA-HQ -OAR-2002-0037 Vinyl Institute Petition/or Reconsideration and Request to Stay the Rule Pending Reconsideration The fin al rule defines a "bypass" as "diverting a process vent or closed vent system stream to the atmosphere such that it does not first pass through an emiss ion control device" (emphas is added). In tum, 40 C.F. R. 63. 1I930(c) imposes the following prohibition: For each closed vent wstem that contains a bypass as defined in 63.12005 (e.g., diverting a vent stream a way from the control device). you must not disclw,ge to tlte atmospltere throug h tlte bypass. Any suclt release constitutes a violation of titis rule. Tlte use ofany bypass diverted to the atmosphere during a pe1for111ance test invalidates the pe,.formance test. You 11111st comply with the provisions of either parag raph (c)(1) or (2) ofthis section for each closed vent s ystem that contains a bypass that could divert a vent stream to tlte atmospltere. The Working Group considered the possibil ity that the tenns "closed vent system" and " process vent" must have some different meaning, such that EPA' s use o f one but not the other in Section 63 . l l 930(c) limited the applicability o f the bypass prohibition. The problem is that the two definitions are essentially circular and process vents appear to have been subsumed into the definition of a closed vent system. Specifically, the final PVC MACT rule defines a "closed vent system" at Section 63.12005 as "a system that is not open to the atmosphere and is composed of piping, ductwork, connections, and, if necessary, flow inducing devices that collect or transport gas or vapor from an emission point to a control device." A process vent is defined in Section 63. 12005 as: A vent stream tltat is tlte result of tlte manifolding of eaclt and all batclt process vent, continuous process vent, or miscellaneous vent resultingfrom the affected facility into a closed vent s ystem and into a common header tltat is routed to a control device. Tlte process vent standards apply at tlte outlet oflite control device. A process vent is either a PVC-only process vent or a P VC-combined process vent. (Emphasis added.) It would appear, at least initially, that the term "em ission point'' is intended to provide some additional guidance. Although not defined in the PVC MACT, EPA has indicated this in the preamble to its recently p roposed National Uniform Emission Standards/or Storage Vessel and Transf er Operations, Equipment l eaks, and Closed Vent Systems and Control Devices; and Revisions to the National Uniform Emission Standards General Provisions ("Uniform Standards").52 The Unifonn Standards would implement a s imi lar scheme for bypasses from closed vent systems. "The U ni form Standards have, in general, been modeled after the emissionpoint and emissions control-specific subparts of the Generic MACT,"-22 which defines an "emission point" as: .. .an individualprocess vent, storage vessel, transfer rack, wastewater stream. kiln.fiber spinning line, equipment leak, or other point where a g aseous stream is released. ll .ti National Uniform Emission Standards for Storage Vessel and Transf er Operations. Equipment l eaks. and Closed Vent Systems and Control Devices: and Revisions to the National Uni/01111 Emission Standards General Pro1isions, 77 Fed. Reg. 17,898 (March 26, 20 12). ~ See 77 Fed. Reg. 17,902. * 21 40 C.F.R. 63.11 01. 19 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl !11stit111e Petition for R econsideration and Request 10 Swy the Rule Pending Reconsideration In other words, under the PVC MACT, a process component subject to the equipment opening procedures is an emission point, which is a process vent, which is a closed vent system. This termino logy is o f particular concern because in order "to ensure that any flow directed through a bypass is detected and identified by the operator,"~ paragraphs (c)( I) or (2) of 40 C.F.R. 63. I l930(c) require the installation of a bypass flow indicator, or a car-seal or lock-andkey to secure bypass valves in the non-dive,ting position. EPA makes c lear the intended outcome of these requirements: for bypasses that do not contain an automaticflow control valve and have manual lock-and-keyflow control valves, anvtime tlte manual valve is opened, it would result in a violation. Ifyou install and maintain a bypass flow indicator equipped with an automatic alarm system, then any indication offlow throu,fh the bypass is a violation, but the action ofopening the valve is not a violation.~ The Working Group has been unable to identify any provision in the final rule that differentiates these components such that the bypass provisions apply to some components but not others. Thus, as currently drafted, the bypass prohibition conflicts with the equipment opening procedures of the rule, and it appears that no maintenance activity involving the opening of a valve or other piece of equipment can be perfonned without violating the Act. Moreover, it is not clear that EPA has fully considered the implication of the current language. For example, as currently defined, analyzer vents (e. g., exhaust gas from a vinyl chloride gas chromatograph monitor or other continuous emission monitoring system ("CEMS")) qualify as bypasses. In contrast, the Uniform Standards address analyzer vents through the LOAR requirements for a "sampling connection system" (i. e., lines that convent samples to analyzers and analyzer bypass lines), rather than cons idering them bypass violations or deviations.60 If EPA continues to consider all bypasses violations under the PVC MACT, then any PVC Unit with analyzers that emit HAPs, such as exhaust gases from the Gas Chromatography ("GC") or Mass Spectrometry ("Mass Spec"), which are used lo comply with the VCM NESHAP ambient air area monitoring system requirements, would be in continuous violation. Exhaust gas from analyzers has already been controlled and on recons ideration, EPA should clarify that analyzers are not subject to the bypass provisions of the final rule. B. Requirements/or Bypass Flow indicators, Car-Seals. or Locks and Keys are Beyond-the-Floor Requirements Whose Costs and Benefits Should Have Been Analyzed As EPA notes, the PVC industry has lo ng been subject to a prohibition against certain types of bypasses under the VCM NESHAP.fil. It should thus be axiomatic that under the Act, the prohibition against these bypasses constitutes the MACT floor. Section I 12(d)(3) of the Act ll 76 Fed. Reg. 29,553. 22 76 Fed. Reg. 29,553. 62 77 Fed. Reg. 17,954 ("It is our intent that analyzer vents should be subject to the control requirements for sampling connection systems in 40 CFR part 63, subpart UU"). 2.l. Docket Document No. EPA-HQ-OAR-2002-0037-0 I85, at 10-30. 20 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl lnstilllte P etition/or Reconsideration and Request to Stay the Rule Pe11di11g Reco11sideratio11 requires EPA to set standards that "shall not be less stringent" than the emission controls that have been "achieved in practice:" ...the statute's use o_fterms like "achieved" and "controlled" at the floor-setting stage urges EPA to focus on what sources have actually done to ameliorate the pollution caused by their particular set ofinputs.62 Section I 12(d)(2) authorizes EPA to set em issions standards that are the most stringent EPA finds to be "achievable." Othe1wise known as "beyond-the-floor" standards, the "achievable" standards obviously are more stringent than the I 12(d)(3) floor. As the D.C. Circuit explained, the CAA amendments of I 990 "now requires that beyond-the-floor standards be achievable and provides a framework for analyzing ach.ievability, including consideration of cost, energy requirements, and other factors."f!l This analysis has been deemed so critical that in the absence of any type of quantification of benefits or costs, EPA may have "no basis fo r finding that, 'taking into account the cost,' emissions reductions from pollution prevention programs were 'achievable' as the statute uses the word."M. EPA's imposition of flow indicators, key locks, or car-seals constitute just such a beyond-the-floor standard for which the Agency should have considered a variety of factors, including cost. When the Working Group raised the issue at its April 18, 2012 meeting, EPA staff suggested that no beyond-the-floor analysis was required because the flow indicator and car-seal requirements were provisions the Agency decided to put in place to address malfunctions. This argument is patently flawed and fai ls for two reasons. First, it is clear that the provisions are not intended to deal simply with malfunctions, but apply also to n01mal operations and maintenance activities: Our intent in thisfinal rule is that control devices will not be bypassed; therefore, use ofthe bypass at anv time to divert a regulated vent strewn to the atmosphere would be a deviation from the emissions standards. Additionally, due to the precedent set forth in the recent court vacatur ofthe exemptions to emissions standards for startup, shutdown, and malfunction [Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008)}, we are required to ensure that section 112 emissions limitations are continuous and apply at all times. Thus, we are not adopting exemptions for maintenance activities and equipment such as pressure relief devices, low leg drains, high point bleeds. analyzer vents, and open-ended valves or lines as part ofthis action.~ More importantly, the Agency' s pos ition- that the monitoring of equipment and reporting ofequipment cond itions are not emissions standards subject to beyond-the-floor analysis- is contrary to the plain language of the Clean Air Act. In this regard, Section 302 of the Clean Air Act defines "emission limitation" and "emission standard" to mean: 2:t Portla11d Cemellf Ass 11, 665 F.3d at 196 (D.C. Cir. 20 1! ) (Williams, J., concurring). ~ Sierra Club v. EPA , 353 F.3d 976, 989 (D.C. Cir. 2004). fB Sierra Club v. EPA, 167 F.3d 658,666 (D.C. Cir. 1999). il Docket Document No. EPA-HQ-OAR-2002-0037-0185, at 10-26. 21 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl lnsti/llte Petition for Reconsideration and Request to Stay the Rule Pending R econsideration ...a requirement established by the State or the Admi11istrator which limits the quantity, rate, or co11ce11tration ofemissions ofair pollutants on a continuous basis. including anv requirement relating to the operation or maintenance ofa source to assure continuous emission reduction, and anv desin, equipment, work practice or operational standard promulgated under this chapter. Put simply, this broad language encompasses any requirement to install a n ow indicator, key and lock, or car-seal. The Agency may believe that it can proceed pursuant to its alternative authority, under Section l 14(J)(c), to require the installation and use of moni toring equipment. Such authority, however, would be limited to the installation of flow indicators, and would not cover emission limitation measures clearly intended to " limit[] the quantity, rate, or concentration of emissions of air pol lutants on a continuous bas is," such as car-seals and locks and keys. Moreover, the inclusion of flow indicators with the other two approaches raises significant questions as to whether flow indicators reall y are only intended for monitoring. Given that PVC facil ities are al ready prohibited from bypassing control devices (subject to equipment opening standards), and that nothing in the record indicates that a PVC facility currently uses car-seals or fl ow indicators, and that they are not required by the VCM l\TESHAP, this requirement constitutes a beyond-the-floor standard for which EPA should have considered costs and other factors. A review of the background documents for both the proposed and final PVC MACT rule indicates that the Agency performed no such analysis. The Agency's treatment of the closed vent system bypass provis ion stands in stark contrast lo its approach to pressure relief devices ("PRDs"). Although the Working Group found the Agency's PRD analysis to be fatally nawed, as discussed below, EPA at least conducted an analysis of the costs and benefits of its beyond-the-floor requirements for equipment leaks, including installation of PRD flow indicators.67 E PA 's approach for this analysis is instructive because o f the obvious parallels with the bypass requirements. First, EPA determ ined that the MACT floor level of control for equipment leaks was compliance with the existing PVC NESHAP at 40 C.F.R. Pa1161 , Subpart V. Next, the Agency determined that the imposition ofa requirement to comply with 40 C.F.R. Part 61 Subpart UU would be appropriate.!!li Like the bypass provisions, EPA did not specifical ly identify the requirement to equip PRDs w ith release indicators and an alert system as a beyond-the-floor requirement, even though Subpart V docs not include requirements for flow monitoring for PRDs.~ Nevertheless, EPA proceeded to analyze the costs and benefits of PRO !1ow indicators. The Agency's action is particularly compelling given prior decisions prohibiting the consideration of costs when setting the MACT ~ 42 U.S.C. 7602{k) (emphasis added). 61 Docket Document No. EPA-HQ-OAR-2002-0037-0 I 02, at I 9-21, Me111ora11d11111 from Eastern Research Group. Inc. (ERG) to J. Howard. USEPA: Costs and Emission Reductions oftl,e Proposed Sto11dords for 1!,e Po~vvi11yl Chloride and Copolymers (PVC) Production Source Category; see also Docket Document No. EPA-HQ-OAR2002-0037-0194, at 27, Memorandum from Eastern Research Group, Inc. (ERG) to J. Howard, USEPA: Re1ised Beyo11d-the-Floor A11a~vsisfor the Polyvinyl Chloride and Copoly mers (PVC) Production Source Category. ~ 77 Fed. Reg. 22,896. l!2 See 40 C.F.R. 6 1.242-4. 22 Docket JO No. EPA-HQ-OAR-2002-0037 Vinvl Institute Petition for Reconsideration a11d Request to Swy the Rule Pending Reconsideration floor,1Q thus confirming that EPA viewed the PRD release indicator and ala rm as a beyond-thcOoor requirement. The Agency's fa ilure to develop an analysis of the flow indicator, lock and key and carseal requi rements fo r closed vent systems under the PVC MACT also is curious in light of the cost analysis it conducted for virtually identical requirements in the recently proposed Uni fo rm Standards.21 T he Uniform Standards are regulatory templates that EPA intends to tailor to specific source categories and various process components and equipment in future rulemaking. Thus, EPA's performance of a cost analysis for the Uniform Standards confirms the applicabi lity of a similar analysis to the PVC MACT; it confirms that the Agency's failure to do so was arbitrary and capricious. The Working Group recognizes the difficulties EPA faced in grappling with how best to address malfunctions: EPA has determined tlint CAA section JJ2 does not require that emissions that occur during periods ofmalfunction befactored into development ofCAA section 112 standards. Accounting/or 111alf1111ctio11s would be difficult, ifnot impossible, given the my riad different types of111a!fi111ctio11s that can occur and given the difficulties associated with predicting or acco1111tingfor the freq11e11cJ1, degree, and duration ofvarious ma!fimctions that might occur. EPA 's rationale for its approach to 111a!fi111ctio11s is not based 011 the criteria that must be met to justify a work practice standard under CAA section 112(1,), Further, setting work practice standards under section 112 presents the same issues as setting numerical emission limits given the varied nature ofma!fimctions.72 The preceding discussion clearly explains why the Agency believes that it is unable to address malfunctions unde r the Act's e missions limitation framework. But the accounting difficulties associated with malfunctions do not grant EPA any extra-statutory authority. U ltimately, the Agency must work within the constraints oftbe Clean Air Act, which the EPA has violated by faili ng to provide sufficient rationale, including cost analysis, for its actions. C. installation ofFlow Indicators, Car-Seals, or locks and Keys to Prevent Bypasses is 1101 Achievable and is U1111ecessmy E PA is requiring that now indicators, car-seals, or lock-and-key configuratio ns be installed on bypasses in closed vent systems. Car-seals or lock-and-key configurations arguably would have the lowest per unit installation costs, but where these are used, EPA is requiring PVC facilities to: ... visually i11spect tl,e seal or closure mecha11ism at least once eve,y mo11tl, to verify that the valve is 111ai11tai11ed in the 11011-diverti11g position, and the vent stream is 1101 diverted tl,rougl, tl,e bypass. A broken seal or closure 111eclia11ism 10 See, e.g., Notional lime Association v. EPA, 233 F.3d 625,640 (D.C. Cir. 2000). 11 77 Fed. Reg. 17,898. :U Docket Document No. EPA-HQ-OAR-2002-0037-0185, at 3-2. 23 Docket JD N o. EPA-HQ-OAR-2002-0037 Viny l Institute Petition for Reco11sidcrafio11 and Request to Stay the Rule Pe11di11g Reconsideration or a diverted valve co11stitutes a violation from tlte emission limits i11 Table I or 2 to tltis subpa11.ll As a preliminary matter, the preceding language is unworkable because it is overbroad. Any time a car-seal is broken or a key turned, including after equipment opening requirements have been perfo1med, would constitute a violation. Breaking the car-seal or diverting the lockand-key mechanism should not constitute a violation when done in the course of routine maintenance or normal operations if the car-seal is replaced or the lock-and-key mechanism is returned to the non-diverting position after maintenance is complcted.74 We find it d ifficult to believe that the Agency actually intended this outcome, which could be interpreted by inspectors to constitute innumerable violations, which would be arbitrary and capricio us. Therefore, EPA should reconsider and revise the final rule in order to allow for normal operations and maintenance activities. In addition, the Worki ng Group believes that EPA has not fu lly grasped the scope and burden of these requirements. G iven the lack o f an Agency analysis on the PVC MACT car-seal requirements, the Working Group turned to the recently proposed Unifonn Standards for c losed vents systems for a sense of EPA 's possible approach to the PVC MACT requirements. For the car-seal or lock-and-key requirement, E PA based its estimate on the use of a key lock and chain at a per unit cost o f $97. Taking into consideration sales tax, shipping and installation, the cost ballooned to $ 154 per unit.ll We note that ce,tain types of valves commo nly in use at PVC and other chemical fac ilities cannot be car-sealed or secured with a lock and key and would need to be replaced at s ignificantly greater expense. EPA did not consider such a cost contingency in its Uni form Standards analysis, and obviously not for the PVC MACT. EPA' s estimate that total monitoring, recordkeep ing, and reporting costs associated with the monthR' car-seal inspection requirement would be approximately $ 113 per year has no basis in reality.7 The Agency' s estimate is based on an assumption that monthly car-seal inspectio ns would take approximately IOminutes o f operator time per month. Cons idering that afTected sources must certify compliance, the 3 min/year of Engineering review and 3 min/year of Managerial (i. e., Responsible O fficial) review estimated by EPA is grossly underestimated. Either the Agency believes that this annual cost is a per car-seal estimate, o r the Agency does not mean what the plain language o r the rule says about the scope and extent o r equipment covered by the bypass proh ibition. In either event, the rule is based on material error in that the cost estimate is hideously low, or as illustrated by Figure 3, the language is not what the Agency intended. ll 77 Fed. Reg. 22,9 I6, to be codi lied at ~ 63.11930(c)(2){i)(emphasis added). 1:l This may not have been the Agencys intent, but if so, no language or provision of the fi nal rule makes this clear. n Docket Document No. EPA-HQ-OAR-20 I0-0868-0002, at B- I8, Development ofMonitoring Cost Estimates for the Proposed Part 65 U11if01111 Standards for Control D e1ices - Subpart M, Document. ll2 Jd. a l 10. 24 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl l11stit11te Petition for Reco11sideratio11 and Req11es110 S1ay !lie Rule Pe11di11g Reconsideration 1 ,- - - - - - - - , lso1.--....--- I I ! I 1. . - - - - - - - - I-- - -----, ,-------SD3---, ,-------------- ----i:.---7 : 1 1 - - - - ~, I l Knock-wt vc Re cc,,,ery I I Hdding Tank I Pcfymerization I I Pd 1---.i System I I Batch PV I Reactor : Continuoos Conllnuoos I Closed Venl System I BarchPV I I I I PV I ---,---- PV I .__ _ ___, I I I I I Unloading I . ...__ Mis_ c V_ enr__, II I!________ _ _,I S02 Weighing I I Tank . _ j Batch PV !__ _ _______I Process steps S01. VC Unloading and Storage SD2. Mxlng, Weighing and Holding SD3. Pd)merizatlm Reactlm SD4. Resin stripping SD5. Recovery System S06. Blending S07. Drying SD8. PVC Slaage S09. 1n Process' Wastewater Stripping S010. Control De-.ice System (e.g. lnclneratcrJ 1I --- ------ .----- I - ~----- -- - 7 I I ! Pol~ar I I stripping I 1 1 l Vessel Batch or so.fontlnuous I I I I PV I I ---.---~----- ~ - I I SD6 Blend Tanks I I r I I I I SOS I : : JJI y - --- -----------~----- : To Wastewater 1I - - - - :~ - - - -- --------- --- stripper I Cootrd I Del/Ice I Process Venr Table 1~ Limits Waste Gas stream ' Iran all PVC productla, equipment PVCMACT Process Vent I I I I I 1 ;,,:tf I SD10 ,.. I I I Caustic I I I Water I I I I I PVCStaege & Shipping Cyclcne & or Screening Drying 1~-----------'I---------------N-a--t.-G-a--s--------------------------I ----- I S09 ' In Process' To Incinerator/ I :In Process wastewater W a-s-te- wa-ter Scrubber and/a ReCCN8!)' 1 1) H20 Iran Double Mechanical Seals Conrlnuous PV SD8 S0 7 on all Pumps, Canpressas and Agitators 2) H20 Iran Reacta Evacuallng Prior to Opening ..... : CVS starts v.tiere all vvaste gas streams are manfolded together 3) Knock-Out Pcis Steam _ . : VCM gas stream to/from VCM Recovery System : PVC MACT ' Process Vent" To Purple outline blocks are presumed to not be in HAP service Wastewater Treatment --------------------------------------- Figure 3: Suspension and Dispersion Processes Flow Diagram: Process Ven ts 25 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl lnsti1111e Petition for Reconsideration and Request to Stay the Rule Pending Reconsideration The problem with EPA 's cost estimation and by extension, its approach to bypasses at PVC faciliti es is the sheer number and types of components covered by the bypass prohibition. As Figure 3 indicates, w hether the closed vent system begins at discrete emission points, after the recovery device, or somewhere in between, determines whether facilities must monitor and inspect thousands, hundreds, or a few score valves under the bypass provisions. Moreover, the procedures for complying with the car-seal inspection, recordkeeping, and reporting procedures are significantly more complicated than s imply looking to see if a car-seal is in place. Vent valves are located at the top of structures fo r high point bleeds, in the middle of pipe racks normally not accessible but needed for high or low points of expansion loops, between block valves used to isolate equipment, and many other difficult to reach locations. These valves, which may be opened during routine maintenance to suppo1t batch operations, are all subject to equipment opening procedures before being accessed. They also are cri tical to the safe and proper operation o f the facility, and thus are already subject to a painstaking inspection process that EPA has woefully underestimated. Working Group members have reviewed the PVC MACT rule and developed an analysis of initial and monthly compliance with the car-seal inspection requ irement, including mandatory training to ensure safe operation. The analysis, which is enclosed as Exhibit VII, assumes, conservatively, that a PVC facility with 350 valves and components uses car-seals as the lowest cost alternative to meeting the requirements. Working Group members also assumed that the faci lity has four reactors with four valves or other components that must be opened on a daily bas is. As a result, the Working Group estimates that each PVC facility w ill incur ~29,184 initially, and $763,54 1 annually thereafter, or approximately $2, 192 per valve or cornponent subject to the car-seal requirements. These are costs in search o f benefits where none can be found. In addition, Table 5 below clearly illustrates the level of confusion already in place within the PVC industry over the scope and extent of the Agency's bypass provisions. For example, the facilities reporting the highest numbers of potential bypass points assumed the fo llow ing should be counted: All valves in HAP vapor service; 1/3 of the valves in HAP liquid service (it was assumed that there is one liquid leg drain valve fo r every two block valves in the line); A ll relief devices in HAP vapor service; All connectors in HAP vapor service; and All pumps, compressors, and agitators. Whereas, facilities reporting a lower number of bypass points based their estimate on the number of valves in vinyl chloride service that are covered by their LOAR program, or started counting valves after the recovery device. It is impossible to determine from the plain language ofthe fina l rule or the Agency's background documents which approach is the correct one. 26 Docket JD No. EPA-HQ-OAR-2002-0037 Vinyl /ns ti/11/e Petitionfor Reconsideration and Req11es1 to Stay the R11/e Pending Reco11sideratio11 350 400 0 3,576 0 6,600 141 53 0 167 0 167 0 258 0 1128 0 167 0 202 0 369 0 711 0 550 3 15,124 4 Notes: All bypasses were reported to the National Response Center {"NRC"). Related to a power loss at the facility. 'Valves on closed vent system, including recovery device=350; line from recovery system to thermal xidizer-40. Bleeds and rocess safe! valves=141 ; Block valves to ressure indicators and transmitter= 53. It is also worth noting that EPA 's approach to bypasses is not compre hens ive. Flow indicators, which cost prohibitively more than car-seals or key-locks,22 merely detect and identify that a bypass has occurred, and cannot prevent a bypass. Conversely, car-seals and keylocks are intend ed to prevent the diversion of a vent stream, but cannot detect, prevent, or identify a bypass should one inadvertently occur or result from inte ntional maintenance activities. Nor has EPA demonstrated a need for such burdensome requirements, particularly given the regularity with whic h ce1tain valves and other components must be opened during normal operations. As Table 5 indicates, there have been onlv four bvpasscs from PVC facilities over the past five vcars. D. EPA Failed to Consider Equipment and Procedures Currently in Place to Address Bypasses EPA acted arbitrarily and capriciously when it refused to consider the effectiveness o f systems currently in place at PVC facilities to monitor and notify operators about the occurrence and locations of bypasses. All PVC facilities are required to have an extensive ambient air area monitoring system that ensures that vinyl chloride releases are detected expeditious ly. 78 As EPA has recognized elsewhere, vinyl chloride is the best substance for th is purpose because of its prevalence throughout the proccss.22 ll Id. at 6 (T able 5). In its Uniform Standards rulemaking, the Agency assumed the cost to be one-haIfof the purchased equipment cost of the gas phase now meter, or $900, with a total capi tal investment of $3, 150 and a total annualized cost of$3,300. * .ZS 40 C.F.R. 6 I.65(b)(8)(i). TI 77 Fed. Reg. 22,885, supra text at note 49. 27 Docket lD No. EPA-HQ-OAR-2002-0037 Vinyl /11stitute Petition for Reco11sideratio11 and Request to Stay the Rule Pe11di11g Reco11sideratio11 A typical ambient air area monitoring system at a PVC faci lity will use two or more gas chromatographs or mass spectrometers connected to multiple emission detection po ints set at various locations throughout the facility. These points are connected by sample tubes back to each monitor, which in tum analyzes the sampled stream and transmits the readings in real-time to a control room. The monitors cannot read all the emission points s imulta neous ly and thus w ill cycle from point to point. The amount of time it takes the monitor to cycle through all of its assigned points once is the "Analysis Cycle Time," and represents the longest amount of time it will take for the system to detect a release at the action level. 2GCs 4GCs 2 Mass S ec 2 Mass S ec 1 Mass S ec 6GCs 3GCs 2 Mass S ec 2GCs 7GCs 15 GCs 7GCs 6GCs 2GCs 5GCs 3GCs 41 20min. 46 20min. 96 30 min. 109 18min. 33 m 16.5 min. 120 m 15min. 42 12-15 min. 38 6 min. 20 10min. 101 7.5min. 216 7.5 min. 101 m 7.5min. 3 consecuUve readings from 57 the same point at > 10 ppm 10min. VCM 40 30min. 50 10 min. 43 22.5 min. The action level ranges from I ppm to IO ppm vinyl chloride, and is a functi on of the number of points, s ize of the facility, and the sens itivity o f the equipment. T he system automatically triggers an alarm in the control room once it detects any vinyl chloride above the action level. The control room monitor provides infonnation on the conce ntration o f vinyl chloride, the general location of the detection point, date, and time. PVC fac ilities use various methods to pinpoint releases detected by their ambient air a rea monitoring systems. Some fac ilities have alann lights near the detection point that begin to Dash as an aid for pe rsonnel looking for the release or leak. Others use audio, visual, or olfactory ("AVO") de tectors to pinpoint the source of the alarm. Still others use hand-held devices near the detect ion point to identify the source of a leak or release. Detection points are located at high and low locations around the facility. Thus, it is unlikely that the ambient air area monitoring systems would fail to detect any bypass. Yet, EPA ins ists that Oow indicators, car-seals, or key and locks be installed to ensure that bypasses do not occur at PVC facilitics,80 or if they do, that they are identified and addressed immediately. ft is not possible to verify this assumption from the administrative record, however, because ( I) EPA did not perform the analysis; a nd (2) the Agency did not consider the effectiveness of existing fill Docket Document No. EPA-HQ-OAR-2002-0037-01 85, at I0-25 to I0-26. 28 Docket ID No. EPA-HQ-OAR-2002-0037 Viny l lns1i1111e Petition for Reconsideration and Request to Stay the Rule Pending Reco11sideratio11 practices at PVC facil ities that are intended to prevent bypasses or detect them within minutes. Accordingly, the Agency has failed to demonstrate in accordance with the Clean Air Act that these beyond-the-floor requirements are achievable, and reconsideration of these measures is warranted. VI. Pressure Relief Device Requirements arc not Achievable and Must be Reconsidered As with the bypass provisions, EPA had no basis for finding that ce11ain requirements applicable to PRDs are achievable in accordance with the Act. Under the PVC MACT, PRDs that discharge d irectly to the atmosphere must be equipped with release indicators and an alert system that will notify an operator immediately and automatically when the pressure relief device is open.RI EPA estimated that each faci lity would incur capital costs of $ 188,900 and annual costs of $26,900 to implement this requi rement, based on a heavily d iscounted per PRO cost of $ 1,410.82 According to EPA, the release indicators are necessary because: Release eventsfrom PRD have the potential to emit large quantities ofHAP, and a large 11umber ofthese releases that may occur may not be identified and co11trolled in a timely manner, and !!!!JJ!. be due to repeat problems that /,ave not been corrected. /11 tl,e final rule, PRD are required to be equipped with indicators to identify and record tl,e time and duration ofeacl, pressure release. The requirement to install i11dicators to ident(fy and record the time and duration of each pressure release is a compliance requirement to ensure tlie PRD requirements in tl,e final rule are met. TJ,ey lielp ensure tl,at a11y PRD discharge, i.e., a release ofuncontrolled HAP emissions, is immediately /mown to tl,e source operator and recordedforfut11re consideration by the facility or regulato,y autliority, so that remedial or preventative action can be taken to minimi:::e or avoid PRD discliarges in the future. ~ During the comment period, the Working Group demonstrated that release ind icators were unnecessary for PRDs because multiple systems and procedures already are in place at PVC fac ilities to perfonn the fu nction of identification and operator notification. Some of these inc lude extensive e lectronic mo nitoring of process and equipment pressures with multi-stage ala,ms (high and high-high) continuously monitored by operators located in control rooms, operators working in the process areas with the ability to both visually and audibly detect PRO operation, and VCM monitoring systems designed to detect releases and the area or the plant in which they are located. We acknowledge, based 011 information from the commenters. that the PVC indus/ly typically installs area monitors in addition to rupture discs in series with reliefvalves. We also acknowledge other commenters 'statements that multiple systems and p rocedures exist to detect and remedy releases from PRD, although they did not identify specific Jystems or procedures for the EPA to consider. Hmvever, the comme11ters did 1101 suggest tl,at the EPA adopt a11y type of aJ.40 C.F.R. ~ 63. l 1915(c)( l). ~ 77 Fed. Reg. 22,893. ~ 77 Fed. Reg. 22,882 (emphasis added). 29 Docket ID No. EPA-HQ-OAR-2002-0037 Vi11yl Institute Petition for Reconsideration and Request to Stay the Rule Pending Reco11sideratio11 monitoring or recordkeeping requirement/or PRD discharges, and commenters' statements taken as a i,vhole do 1101 support a conclusion that all PVCfacilities currently install and use effective means to detect and record PRD discharges/or all oftheir PRD.'M The preceding statements illustrate the errors in the Agency's PRO approach. EPA may not propose and dispose on the basis of vague concerns, while holding industry to a more stringent standard in refutation. ln promulgating its regulations, EPA is required to examine and take a "hard look" at the available data to ensure that a "rational connection" exists between the facts and the regulatory solution chosen by the Agcncy..s.s. EPA did not ask for, nor did it receive, PRO information from industry, because it specificallv instructed in the Section 114 Survey, Form K-1-b, that industrv not include any pressure relief data.86 Nor does it appear that EPA examined the data from any other source concerning the extent, frequency, and length of PRO releases for its own decisionm aking. It goes without saying that EPA did not provide such data to the public for review and comment on the relevance and adequacy of such data as the basis for informed and reasoned rulemaking. Yet EPA requires the PVC industry, which reasonably should need only point the Agency to its own records, to do more. This is the essence of arbitrary and capricious ru lemaking. Second, the data clearly shows that the Agency's concerns over PRO releases from the PVC indust ry are unfounded. The release indicator requirement is a solu tion in search of a problem. Even assuming that enhanced notification of PRO releases is warranted, nothing in the record suggests that release indicators will perform this function more effectively than the systems and procedures cutTently in use at PVC faci lities. lndeed, EPA acknowledged that the requirement would provide zero net envi ronmental benefit.fil Accordingly, the Agency has failed to demonstrate that the installation of PRO release indicators, taking into consideration cost and other factors, is achievable, and must reconsider this requirement. A. PJW Releases From the PVC !nduslly are Infrequent. ofShort Duration, and Release Minimal Amounts ofHAP The PVC industry did not suggest that EPA adopt any reporting o r recordkeeping requirements concerning PRD discharges because the Working Group pointed to such existing requirements in its comments on the proposed rule. Specifically, the Working Group noted that vinyl chloride releases are subject to a one-pound reportable quantity ("RQ") under the Comprehens ive Environmental Response, Compensation, and Liability Act ("CERCLA") and Emergency Planning and Community Right-to-Know Act ("EPCRA'') regulations.fill Given this l!:! 77 Fed. Reg. 22,88 1. ~ Motor Vehicle Mfrs. Ass '11, 463 U.S. at 43 ( 1983); Small Ref Lead Phase-D011111 Task Force v. EPA, 105 F.2d 506, 520, 53 1 (D.C. Cir. 1983). ~ Indeed, in Form F of the s urvey, EPA requested information on all process stanup, shutdown, and malfunctions, and specificed that emergency/safety relief events are not considered malfunctions. 2 Docket Document No. EPA-HQ-OAR-2002-0037-0 195, at 17, Memora11d11mfrom astern Research Group to Jodi Howard. EPA. Subject: Revised Costs and Emission Reductions fo r Major Sources in the Po~vvi11y l Chloride and Copo~)llners (PVC) Production Source Catego1y . * * ll Docket Document No. EPA-HQ-OAR-2010-0868-0 146, at 99; see also 40 C.F.R. 302.4; 40 C.F.R. 372.65. 30 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition/or Reconsideration and Request to Stay the Rule Pending Reconsideration low threshold and the pressures typical ly involved in PRO releases, the procedure at PVC facilities is to report anv PRD release of VCM to the National Response Center operated by the U.S. Coast Guard as a release, and to provide a correction should the amount of the release prove to be below the threshold. Details of the release a lso must be reported within IO days to the EPA Administrator.89 T hese reports on incidents also are reported in the quarterly compliance repo1t to the Agency. Accordingly, EPA has a comprehensive database of information wi th which to assess the extent and scope of PRD releases within the industry. Nowhere in the docket, however, does the Agency review or summarize PRD releases by the PVC industry, assess the quantity of HAPs released, o r review current industry measures to address these releases. The Working Group made this very point at its June 30, 20 11 meeting with EPA. We pointed out that given the additional data collection on other matters, there simply was not enough time to collect and aggregate this information before the close of the comment period, but that it was readily accessible by EPA from its own records. Agency staff demurred, suggesting that there was widespread non-compliance w ith the PRO release prohibition and the reporting requirements within the PVC industry. As indicated above, members of the PVC industry have long been required by law to provide timely and accurate reports of PRD releases under both the VCM NESHAP and CERCLA. Failure to do so is a s ignificant offence subject to serious consequences including possible criminal prosecution. In addition, the Agency has several investigative and analytical tools at its disposal , specifically the Section 11 4 Request, which it could have used to better understand this issue, but chose not to. The Agency also could have laid out its non-compliance concerns in the preamble to the proposed rule, and requested data either supporting or contradicting the view that PRO releases are widespread. It did neither and simply decided, without reasoned analys is, that release indicators are needed to identify otherwise supposedly unknown releases. The industry has since been able to collect preliminary infonnation spanning the past three years from 17 Working Group member facilities. The data, which is summarized at Table 7, includes the number of PRDs at each facility, the total number of releases over the past three years, and the number of releases reported to the National Response Center (" NRC"). ~ 40 C.F.R. 6 I.65(a). 95 72 0 426 0 39 0 125 127 0 91 0 256 0 57 0 0 0 0 0 0 0 0 0 0 31 Docket 10 No. EPA-1IQ-OAR-2002-0037 Vinyl Institute Petition /or Reconsideration and Request to Swy the Rule Pending Reconsideration eorgia Gulf Aberdeen eorgia Gulf Plaquemine TOTALS 109 3 3 139 9 9 2134 14 14 There are over 2, 134 PRDs in service at these 17 Working Group member facilities. Clearly, PRO releases from PVC facilit ies to the atmosphere are demonstrably infrequent. There have been only 14 releases from a total of 2, 134 PRDs in the past three years. A ll releases were reported to the NRC and to EPA, regardless of whether the releases exceed the one-pound RQ. Based on current performance, additional PRO regulation is not justified. B. All PVC Facilities Have Installed and use Effective Means to Promptly Detect and Record PRD Disc/10,gesfor all ofTheir PRDs It should not be surprising that there are very few releases across the industry. PROs are a last line of defense to bring a high pressure situation under control after a multi-layered system of primary, secondary, and even tertiary monitoring and alarms, coupled with response components and processes has failed. These processes include emergency polymer ization termination agents, emergency cooling systems, back-up power generation, and venting to control systems. At each of these steps, there are indicators and high pressure alarms to notify the faci lity operator immediately. Every polymerization reactor is equipped with pressure transmitters that continuously monitor reactor pressure and alarm at preset high pressure and high-high pressure points designed to allow for multiple corrective actions before any release to a pressure relief device could occur. These alarms must be addressed as they typically indicate a process or equipment issue that must be resolved expeditiously in order to maintain normal operating condition parameters essential to producing within-specification products. Because PRDs can only Ii ft at the pressure trigger, the PRO cannot activate if all operating parameters are in nominal ranges. Computer monitoring of pressure trends is performed continuously so that even before a highpressure alarm, the operator is aware of changing pressure conditions. Some reactors are equipped with hydroful pressure relief tanks to rel ieve any hydroful situations to prevent a release. First and foremost, it is in every operator' s interest to monitor the polymerization process in order to prevent a run-away reaction that can have catastrophic consequences for people and property. When the intervention measures discussed above are not sufficient, the temporary lifting of a PRO to relieve pressure provides an overwhelmingly usefu l mitigation tool with minimal consequences, from a sa fety standpoint. Yet even a brief lift w ith minor emissions is highly undesirable because it likely will result in a costly off-spec product batch. According to preliminary information collected from Working Group members, unless safety considerations required a delay, facility personnel generally detected, identified, and 32 Docket IO No. EPA-HQ-OAR-2002-0037 Vinyl l11stit11te Petition for Reco11sideratio11 and Request lo Stay the Rule Pe11di11g Reco11sideratio11 responded to PRO releases within one to 15 minutes. The rapidity of the response also ensures that the quantity of HAPs released to the atmosphere is limited. Most significantly, PRDs are designed to automatically close - thus stopping the release - as soon as the reactor pressure has subsided. EPA's new requirement for release indicators and alert systems w ill do absolutely nothing to enhance, nor accelerate, the effectiveness of this existing protective measure. Every PVC faci lity is required to have in p lace a plan for programmed maintenance of every relief valve in accordance with the CAA I 12(r) risk management plan requirements and the Occupational Safety and Health Act process safety management regulations at 29 C.F.R. 1910. 119. For examp le, relief valves at PolyOne's Pedricktown facility are changed out and rebuilt every five years. Many valves that are in contact with multi-phased material, e.g., liquids, gases, and solids, have a rupture disk beneath the PRO. All rupture disks ("RD") arc on some type of change out frequency de pending on service. The frequency ranges from every six months to two years depending on the vessel. For example, at the Po lyOne Henry plant, PRDs in vinyl service arc tested annually if there is no RD below the PRO, and every two years if a RD is present. The PRDs are rebui lt if mechanical testing indicates that the PRO either will not operate at the set pressure trigger, or operates too soon. Both PolyOne plants rebuild or replace any PRO that lifted due to an over pressure incident. In addition to the multi-layer parametric and detection and warning systems discussed above, all PVC faci lities utilize their ambient air area monitoring system, as described in section V. D., to ensure that vinyl chloride releases are detected expeditiously. Vinyl chloride is the best substance for this purpose because of its prevalence throughout the process. The agency has not identified any inadequacies in the ex isting, redundant system of monitoring and alaims to prevent PROs. indeed, actual event data during years of operation validates the adequacy ofcurrent controls. C. EPA 's Release indicators Provide no Added Benefit to Current lndu:illy Release Detection Methods at a Burdensome Cost During the comment period, the Working Group noted that EPA's cost estimates for installation of PRO release indicators were significantly lower than is likely, and provided estimates demonstrating that the actual capital costs would exceed $ 1,000,000 per faci lity. EPA, however, did not find these estimates to be sufficiently detailed and instead used data developed by the South Coast Air Quality Management District (" SCAQMD").22 One fundamental error in .EPA's approach, however, was its use of the so-called "Six-Tenths Rule" to account for economies of scale. EPA used a base cost of $ 10,000 per PRO to install wireless monitoring, which is equivalent to the high end of the cost range provided by the SCAQMD.21 The SCAQMD analysis, which did not use the Six-Tenths Ruic in its cost estimate, noted that " [d]ata provided by wireless industry representatives and a refinery that has installed ten electronic monitoring 2!l fd. 21 Docket Document No. EPA-HQ-OAR-2002-0037-0195, and associated calculation spreadsheet, Docket Document No. EPA-HQ-OAR-2002-0037-0 I99. 33 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl /nstitllle Petition for Reconsideration and Request to Stay the Rule Pending Reconsideration devices has indicated that the unit device cost ranged from $5,000 to $ I0,000 which includes device pat1s, installation and maintenance."92 ln addition, the SCAQMD staff determined that the total cost to purchase and install electronic monitoring devices for 657 PRDs (565 in gas/vapor service - IOalready installed by one facility + I02 in liquid service) was estimated to range from $3.3 million to $6.6 million. Annual operating costs were deemed to be minimal because they included periodic replacement of inexpensive batteries. Based on a review of actual quotations for PRO monitoring systems, the Working Group does not object to the SCAQMD estimate of $5,000 to $ 10,000 per indicator. Our preliminary research indicates that the per PRD cost will de pend on the system's capabilities, and at least one member's detailed assessment suggests that the per PRO figure is significantly higher. Nevertheless, it is clear that EPA ' s application of the Six-Tenths Rule was unreasonable. Assuming that a s ingle PRD monitor at a PVC faci lity would cost $ I0,000, the Agency adjusted that amount to account for economies of scale or volume discounts. Since the model PVC faci lity used for the cost estimate wou ld need 134 PRO release indicators, EPA, instead of applying some reasonable percent discount to $ 1,340,000 (the cost o f 134 PRO monitors at $ I0,000 each), incorrectly applied the Six-Tenths Rule to determine the volume discount. The Six-Tenths Rule is meant to characterize the relationship between the cost and the s ize of a manufacturing facility. As size increases, cost increases by an exponent of s ix-tenths. This rule is typically appl ied when scaling equipment costs.21 For example, if we know that the cost ofa piece o f equipment is $ 10,000 for s ize X, we can use the Six-Tenths Rule to scale the cost of that piece of equipment to size Y. The Six-Tenths Rule reasonably would apply to PRO release indicato rs if it was known that a particular size of indicator cost $ 10,000 and a model facility needed to scale the cost to a different s ize of indicator. It is not appropriate, however, to scale the cost of one indicator to determine the per unit cost of 134 indicators. Using the Six-Tenths Rule in this incorrect manner, EPA concluded that PR.D ind icators at PVC fac ilities would cost $1 ,4 10, or an 86% discount from the $ I0,000 unit price for each PRD.2! No s ignificant leap or analysis is required to recognize and understand that an 86% discount is beyond optimistic; it is unrealistic. Indeed, the SCAQMD did not apply any discounting factor to its estimate,22 so it is unclear why EPA chose to, nor does the Agency provide a reasoned or reasonable analys is for this assumption. The SCAQMD analysis is instructive for another reason. T he SCAQMD determined that based on a cost per indicator of $5,000 to $ I0,000 per device, the cost of installing 657 PRDs was $3.3 million to $6.6 million. As a check on the South Coast estimate, Wo rking Group ~ South Coast Air Quality Ma nage me nt Distric t, "Fin(II StaffReport For Proposed Amended Rule 1173 - Control of Volatile Organic Compound leaks and Release.sfrom Compo11ems at Petroleum Facilities and Chemical Plants ." May I 5, 2007 . !U See EPA, Econo mic Impact Anal ysis ( EIA): S mall Municipal Waste Combusto rs- Emissio ns Guidelines and New Source Perfonna nce Standards, p. 10 EPA-452/R-00-00 1 (May 2000). 2:1 See, e.g., spreads heet included in Docket Document No. EPA- HQ-OAR-2002-0037-0199, Tab: PRD Wireless Monitoring , Cell: CS. 21 South Coast s upra note 92, at 6-4. 34 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petitionfor Reco11sideratio11 and Request to Stay the Rule Pending Reconsideration members sought out their own cost estimate for wireless PRO pressure transmitters. The model plant was Westlake's Geismar, LA facility which has 50 PROs. Westlake estimates the cost for piping modifications to the annular space between the rupture disk and the PRO and to install each transmitter to be approximately $2,000, and when applied to 50 PROs, the installation cost is projected to amount to$ I00,000. Westlake received quotes for 50 w ireless pressure transmitters and power supplies, two w ireless device managers, and two wireless field access devices from Honeywell that totals $ 175,384, which is included as Exhibit VIiia. In add ition, Westlake received a cost estimate from Champion Technology Services for $6,800 for Honeywell's OPT Tunneler software and programming to tic the transmitted signal into the control room, which is included as Exhibit Vlllb. The total cost for the installation at Westlake Geismar's facility would be $ 100,000 + $ 175,384 + $6,800 = $282, 184, a cost per PRO of$5,643. In sho11, the Westlake test case indicates that EPA underestimated the real world cost of complying w ith the PRO requirement by close to a factor of four. It is important to note that the transmitters used for the Westlake estimate are less expensive, but arguably less accurate than lift indicators. Specificall y, EPA is requiring facilities to install "a release indicator on each PRD that would be able to identify and reco rd the time and duration of each pressure release and notify operators that a pressure release has occurred."~ The pressure transmitters evaluated by Westlake measure the pressure in the annular space between the rupture disc and the relief valve. Theoretically, a facility should be able to determine when a release occurs and when it stops, solely by measuring the annular space pressure. Lift indicators, in contrast, measure the displacement of the stem on the seat o f the valve, and arc an accurate recording of the time and duration of any movement of the valve seat itself. The Working Group assumed that pressure transmitters would be an acceptable alternative to lift indicators as not every relief valve can be fitted with one. To do so would be a very expensive undertaking that would require the industry to replace or retrofi t the valves to incorporate the li ft indicator technology. If thjs was EPA's intent, then the actual costs to comply with the Agency's requirement are likely significantly higher than the Westlake test case. In addition, some Working Group members have expressed concerns about the viability of wireless technology in certain applications. For example, the use of a battery to power the transm itters adds additional maintenance costs and complexity, particularly in areas where safely considerations are paramount. There also continue to be concerns about the proprietary nature and lack of interchangeability of many of the systems currently on the market. Constantly changing and upgrading standards also present a problem particularly with regards to replacement and spare components. ln addition, the well-documented security issues associated with wireless technology, as well as the possibility that wireless transmissions may interfere with other sensitive instruments, means that wired systems may be the only option for ce11ain facili ties. As the spreadsheets at Exhibit VIiie indicate, the cost for a hard-wired system can be significantly more expensive, ranging from $ 19,000 per PRD for a system that did not require an additional junction box, to $35,000 per PRD for a system with an add itional junction box. 22 77 Fed. Reg. 22,860. 35 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition/or Reconsideration and Request to Stay the Rule Pending Reco11sidcratio11 As the requirement to install PRO release indicators over cuJTent detection and notification systems in use in the PVC industry is a beyond-the-floor requirement, EPA is required to take " into consideration the cost of achieving such emission reduction." The Agency has itself recognized that this requirement will result in no emission reductions,97 and the Working G roup has already established that existing systems and procedures in place to prevent the releases (e.g., short stop addition to reactors) for some vessels and for the remaining PRDs are able to provide near real-time detection and notification. Accordingly, the Agency has failed to demonstrate that the requirement is necessary or achievable, taking costs and other factors into consideration as required by the Act. VII. EPA Should Reconsider and Allow Leak Detection and Repair of Pressure Vessels Under Section 63. 119 I0(c) of the final PVC MACT, pressure vessels must be operated as a closed system that does not vent to the atmosphere. In addition, potential leak interfaces on pressure vessels must be monitored annually for leaks using the LOAR procedures specified in Section 63. 1191 5.2.8 The problem here is that Section 63. 11 9 I0(c)(4) makes any discharge from a pressure vessel closure device to the atmosphere a violation of the PVC MACT, w ithout first providing an opportunity to fix the leak. During the rulemaking, the Working Group requested that, like other equipment, pressure vessels should be covered by all the LOAR provisions, including the ability to delay repair, such that these leaks are not automatic violations. According to EPA, however: Since pressure vessels are defined to not vent to tl,e atmospl,ere, tl,is inl,erently makes tl,em differentfrom other storage vessels, sue/, as fixed roofstorage vessels that are designed to vent with diurnal temperature changes. We believe that because pressure vessels are designed to not vent to the atmosphere and with no detectable emissions, a leak (i.e.. above 500 ppm background) from one would be inconsistent with the definition ofa pressure vessel, and hence a violation ofthe rule.99 Pursuant lo Section 63. 11 890(d), leaks from pressure vessel closure devices are categorized as "deviations," not "malfunctions." Malfunctions are defined in part as "any sudden, infrequent, and not reasonably preventable fai lure.. .of process cqu ipment."W EPA appears to be taking the position that leaks from closure devices are preventable, and thus may not benefit from the affirmative defense provision of the rule, but nowhere in the record does the Agency explain why or expand on the basis for these requirements. At the April 18, 20 12 meeting with industry, EPA staff indicated that no repair option was set as the fl oor because the Agency had no data demonstrating that leaks do occur on pressure vessel interfaces, or that the industry was dealing with such leaks pursuant to one of the Agency's prescribed LOAR programs. 2Z Docket Document No. EPA-HQ-OAR-2002-0037-0195, at 17. * il 40 C.F.R. 63.l 1910(c}(3). ~ Docket Document No. EPA-HQ-OAR-2002-0037-0185, at 12-61 . .ll!!2 40 C.F.R. 63.2. 36 Docket lD No. EPA-I-IQ-OAR-2002-0037 Vinyl Institute Petition/or Reconsidemtion and Request to Stay the Rule Pending Reconsideration A. LDAR is the Common Approachfor Dealing Wit/, Leaks From Pressure Vessels Based o n the pla in lang uage of the final PVC MACT rule, it would appear that EPA differentiates between leaks from closure devices and other potential " leak interfaces." EPA does not define " leak interface" in the fin al rule, but rather po ints to paragraph 8.3 of Method 2 1 at 40 C.F. R. Part 60, appendix A-7. As EPA notes, a potential leak interface is "a location where organic vapor leakage could occur,".!fil.. and Method 2 1 identi fies several such sources, but only leaks from closure devices have been deemed a deviation at 63. I l 890(d) and a violation at 63.119 10 (c)(4) by EPA under the PVC MACT. We note that welds, pressure vessel surfaces, and other components on pressure vessels can also leak. The Working Group assumes that leaks from such locations can be dealt w ith through the LDAR program, but the Agency has not defined what constitutes a "closure device," and nowhere does the regulatory text or any of the background documents state so expressly. Perhaps EPA believes that closure devices present the hi ghest likelihood of a leak because they are vulnerable to improper operation or operator eJTor. Or, the Agency may have data on hand from other industries indicating that closure devices are the greatest source of leaks from pressure vessels. Another possibi lity is that lacking any information on clos ure devicerelated leaks, the Agency conducted a risk assessment and determined that they present the highest risk of a leak. The problem is that nothing in the rule or the rulemaking record provides any information on why EPA singles out closure devices or the concern the Agency has with these devices to warrant such special focus. Accordingly, it is not possible to determine whether the Agency's approach is reasonable or comports with the requirements of the Act. EPA's approach to pressure vessels currently creates a regulatory conundrum. The final PVC MACT rule does not define the term "closure device," but the term has been de fined in the Part 63, subpart DD regulations to include valves and other fittings.ill Critically, valves also are included in the definition of "equipment," and thus, the industry clearly has an opportunity to repair leaks from valves under the final PVC MACT's LOAR provisions before a violation ensues.ID The effectiveness and fundam ental performance characteristics of a valve are the same whether used on a pressure vessel or elsewhere. Thus, either EPA intends to allow the repair of leaks from all valves at PVC facilities, but not hatches or lids, or the Agency has arbitrarily and incomprehens ibly chosen pressure vessel closure devices as the dividing line between what constitutes a repairable leak and a violation. Indeed, based on the Working Group's long experience with pressure vessels, and as discussed in the next sectio n, not only do closure devices and o ther components of pressure vessels leak under normal operating conditions, they can present s ignificantly greater logistical issues to repair, which warrant use of LDAR procedures. .!Jl.!. Docket Document No. EPA-HQ-OAR-2002-0037-0 185, al 12-63. ill See 40 c.r.R. 63.681. The Working Group notes that, as a general matter, each MACT standard s hould stand on its own. and constant cross-referencing to other, non-applicable MACTs for critical definitions, only complicates the task of compliance. ill 77 Fed. Reg. 22,9 11 (codified at 40 C.F.R. 63. 11915). 37 Docket ID No. EPA-HQ-OAR-2002-0037 Vinyl Institute Petition for Reconsideration and Request to Stay the Rule Pending Reconsideration B. Using LDAR on Pressure Vessel Leaks is the Only Achievable Approach Section l 12(h) of the Act provides that " if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard ... the Administrator may, in lieu thereof, promulgate a design, equipment, work practice, or operational standard." 104 The Agency must first make a determination that HA Ps "cannot be emitted through a conveyance designed and constructed to emit or capture such pollutant, or that any requirement for, or use of, such a conveyance would be incons istent with any Federal, State or local law." The Working Group submits that fugitive leaks from pressure vessels such as spheres are specifically the types of emissions that cannot be routed to a control device and should be subjected to the LDAR prov1s1ons. This principle applies equally to leaks from closure devices as from other potential leak interfaces. The primary consideration is that given the size of a pressure vessel, and other considerations, such as internal pressure, and emptying and clearing the vessel, it may not be possible to inunediately stop a leak from a closure device without emptying the vessel- a process which can take several days. For example, typical spheres at PVC facilities range from 5,000 to I0,000 barrels in capacity, and generally take approximately three to four weeks to evacuate before personnel can safely enter and affect repairs. A case in point involved a leaking flange from a 225,000-gallon vessel with a 24" rnanway on top of the vessel. The manway flange is included in the faci lity's LDAR program and monitored on a quai1erly basis. On April 19, 20 I0, a 525 ppm leak was detected at the flange of the sphere manway. A first attempt to stop the leak was attempted by tightening the flange bolts, but this actually made the leak worse, resu lting in an increased readin g of 639 ppm. A second attempt resulted in an even greater increase in the leak from 639 to l ,771 ppm. Repairs had to be delayed so that the fac ility could consult with an outside expert and evaluate how best to resolve the leak in light of the s ignificant increase after the initial repair attempt. Tn consultation with the contractor, it was determined that a temporary clamp would be needed to control the leak until the next planned outage and scheduled vessel inspection. The installation of a temporary clamp is not a minor engineering matter and requires the development of engineered calculations, drawings, extens ive evaluation for approval, Management of Change process, safety and environmental assessment, fabrication of the clamp, and a new chemical approval for the sealant. Ultimately, the temporary clamp was engi neered, fabricated, installed, and the leak stopped within 15 days of placing the sphere manway on Delay o f Repair. It was calculated that about 10.1 lbs of vinyl chloride was released during the time required to repair the sphere, which is similar to leaks from any other equipment at the facility that is subject to the LDAR monitoring program. Application of LOAR, coupled with prompt repair, is both the MACT floor and reflective of best practices for minimizing emissions from pressure vessels. EPA has no basis for requiring otherw ise and reconsideration must be granted. ill! 42 U.S.C. ~ 7412(h)( I); see also Sierra Club v. EPA , 479 F.3d at 883. 38