Startup, Shutdown, and Malfunction (SSM) and Pressure Relief Devices Updates for Resin Manufacturers

Early this year, the U.S. Environmental Protection Agency (U.S. EPA) proposed several updates to the air toxics rule for manufacturers of amino/phenolic resins. On March 27, 2014, U.S. EPA incorporated changes into the following subparts of 40 CFR Part 63, National Emission Standards for Hazardous Air Pollutants (NESHAP, often referred to as Maximum Achievable Control Technology or MACT standards):  Subpart JJJ (Group IV Polymers and Resins); Subpart MMM (Pesticide Active Ingredient Production); and Subpart PPP (Polyether Polyols Production).  Both of these rulemaking activities include updates to emissions standards during periods of startup, shutdown, and malfunction (SSM), standards for previously unregulated hazardous air pollutant (HAP) emission sources, and revisions to require monitoring of releases from pressure relief devices (PRDs). The most impactful changes to these rules are the provisions that require affected facilities to operate control devices during SSM as they would during normal operation and to install devices to monitor the release of organic HAPs from PRDs.  A release from a PRD to the atmosphere would potentially be considered a violation. 

Industry groups submitted comments in response to these rules due to their potential to apply across entire industrial sectors nationwide.  Specifically, groups such as the American Petroleum Institute (API), the American Chemistry Council (ACC), and the National Environmental Development Association’s Clean Air Project (NEDA-CAP) commented on the rulemaking regarding the high costs of compliance, safety, and the technical difficulties associated with diverting PRD emissions to a control device such as a flare.  ACC described in its comments that not all control devices can operate at peak efficiency to meet the appropriate emission standards during SSM.  NEDA-CAP commented that U.S. EPA’s rules fail to distinguish between releases due to malfunctions and those that are caused by properly operating PRDs that avert the potential for catastrophic events.  Also, NEDA-CAP commented that there is not enough factual data behind the proposed rule to prove that HAP emissions from PRDs could cause significant environmental harm.

For decades, PRDs have been part of good process and safety engineering practices as a last line of defense in order to prevent equipment from exceeding maximum allowable working pressures in situations outside of the operators’ control.  Industry groups feel that by establishing a violation for a release from a PRD, U.S. EPA is forcing plant operators to choose between committing a violation by allowing the release to occur, or to attempt to stop the release, which could cause a catastrophic breach.

However, U.S. EPA has largely rejected industry’s complaints based on three (3) arguments. First, U.S. EPA maintains that industry’s complaints are not a sufficient basis for policy change due to the ruling of Sierra Club v. EPA, 551 F.3d1019 (D.C. Cir. 1008 or “Sierra Club”), which vacated the General MACT SSM requirements and set the precedent that the Leak Detection and Repair (LDAR) provisions allowing PRD releases are unacceptable since they prevent a source from being in continuous compliance with applicable MACT standards. Startup and shutdown periods remain subject to a MACT standard for normal operation under this ruling.  Second, U.S. EPA believes that releases from PRDs can potentially emit large quantities of HAPs to the atmosphere and are completely avoidable under proper operation of a plant.  Third, U.S. EPA assumes that a wide range of equipment can be used to measure HAP emissions from PRDs, and it is cost-effective for monitoring devices to be installed on individual PRDs.

U.S. EPA proposes that, based on the Sierra Club ruling, sources must still meet the same emission limits established for normal operation during a malfunction event, but give the source the opportunity to raise an “affirmative defense” to civil penalties for exceedances during a malfunction, such as a PRD release.  An affirmative defense allows facilities to demonstrate that the exceedance was caused by an unforeseeable and unpreventable malfunction.  This approach shifts much of the burden from U.S. EPA to the source in order to show that criteria are met in order to minimize financial penalties associated with the violation.  On a related note, please see a recent blog by ALL4’s JP Kleinle about changes to the affirmative defense provisions in the Portland Cement MACT standard. This legal action could impact the rules described in this blog, as well as others such as Boiler MACT. ALL4 will continue to provide updates on this ever-evolving topic.

After these two rule-making activities, it seems that U.S. EPA may be setting a precedent for subsequent revisions to similar provisions across industries nationwide.  Stay tuned to ALL4’s blog for more updates on SSM emission regulations as they continue to develop.  In addition, a recording of our April 16, 2014 webinar regarding the past, present, and future of SSM regulations and compliance strategies is available for download here.