4 The record articles

Texan Environmentalists Seek Answers on Startup, Shutdown, Malfunction, and Maintenance Events

Posted: May 6th, 2013

Author: All4 Staff 

On April 23, 2013, ten environmental and public interest groups addressed a letter to U.S. EPA’s Inspector General (IG), Arthur Elkins, regarding emissions released from industrial facilities in Texas during startup, shutdown, malfunction, and maintenance events (SSM).  The letter requests a formal IG investigation into what enforcement actions U.S. EPA and the Texas Commission on Environmental Quality (TCEQ) have taken with respect to facilities reporting the largest and most frequent events, and how affirmative defense has been applied in such cases.

The letter asks Inspector Elkins to investigate several areas of concern regarding these upset emissions:

  • What enforcement investigations or actions has U.S. EPA or TCEQ taken to require these facilities to investigate, identify, and remedy the conditions that cause repeated upsets? If those cases did not result in penalties, did U.S. EPA determine that defendants established their eligibility for the affirmative defense?
  • Has either U.S. EPA or TCEQ taken enforcement action requiring any of these facilities to take specific actions to prevent these violations from recurring, e.g., by requiring improved emission controls or operating practices? If so, have these requirements proven to be effective?
  • Has either U.S. EPA or TCEQ determined that a reported emission event is “part of a recurring pattern indicating improper design or maintenance?” How many emission events does it take to make such a determination?
  • TCEQ has established plant-wide emission caps for many facilities. Is pollution released during emission events counted towards determining whether a facility has exceeded its plant-wide cap?
  • The affirmative defense does not apply to emissions during scheduled maintenance, or the scheduled startup or shutdown of a unit.  Does TCEQ consider shutdowns or maintenance activities that follow malfunctions to be “scheduled” events?
  • Are emissions during emission events promptly and accurately reported as required?
  • Many of the facilities reporting chronic emission events fall within the natural gas sector. Do U.S. EPA managers and staff believe that the natural gas industry is “off-limits” to enforcement, and, if so, are those beliefs well founded?

U.S. EPA currently recognizes an affirmative defense to excuse facilities from penalties if they are able to prove that their emissions were unavoidable, minimized, and not recurring.  However, U.S. EPA expects a very high standard of demonstration that such emissions should be excused including a near zero tolerance for the same root cause of the excess emissions.  According to both Table A and Table B provided in the letter from the environmental and public interest groups to IG Elkins, facilities in Texas have released over 21,000 tons of criteria pollutants into the atmosphere during periods of SSM in 2012, and nearly 120,000 tons of criteria pollutants from 2009 through 2012, with over one-third of these pollutants being released by the facilities which report multiple SSM events annually.  The tables also indicate that over 2,000 tons of HAP emissions have been released to the atmosphere during periods of SSM from 2009 through 2012.  The environmental and public interest groups seek to eliminate any Clean Air Act enforcement exemptions for upset emissions during periods of SSM, including the affirmative defense exemption, stating that the SSM exemptions are overly broad and lack penalties which would cause facilities to take specific actions to prevent future violations.

A response to the letter has yet to be issued from the IG.   Stay tuned to ALL4’s blog for more information on this topic as it becomes available.


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