What Happened?
The U.S. Environmental Protection Agency (EPA) issued its first Enforcement Alert under the Trump administration, identifying concerns regarding benzene emissions from petroleum refineries based on fenceline monitoring data. The Clean Air Act (CAA) Refinery MACT (40 C.F.R. Part 63, Subpart CC) requires refineries to monitor benzene levels at the fenceline and implement corrective action when certain thresholds have been exceeded.
While the Alert does not claim widespread noncompliance with fenceline monitoring requirements, EPA calls for new “best monitoring practices” for monitoring benzene emissions, including gas chromatographs, forward-looking infrared or “FLIR” cameras, and benzene-specific handheld photoionization detectors. None of this equipment or best practices are required (or even approved) to measure ambient levels of emissions at a fenceline under the Refinery MACT work practice standard (Method 325). Indeed, these tools and practices are not even designed to monitor emissions at the fenceline (which involve long-term averages of ambient levels). Rather, they are used to monitor short-term emissions from individual pieces of equipment – EPA’s apparent ultimate focus.
The Alert identifies the following equipment and areas as likely sources of benzene fugitive emissions contributing to fenceline emissions and exceedances:
- Storage tanks with high benzene content material (e.g., pure benzene product, reformate, light naphtha, and pyrolysis gasoline from co-located ethylene plants);
- Marine vessel loading operations involving high benzene content materials and poor loading arm operation; improper disposal of slop waste that drips from loading arms; barges that are not fully vapor tight; and/or barge pressure relief valves lifting during loading or while the barge is docked; and
- Wastewater operations (e.g., uncontrolled dissolved air floatation systems, aerated biological treatment units, and uncontrolled junction boxes).
But What Really Happened?
There is more than meets the eye with this inaugural Enforcement Alert, and industry should stay keen to its subtexts:
EPA does not seem inclined to give the petroleum refining and petrochemical sectors a “free pass” on enforcement. Early Executive Orders and Trump EPA policy pronouncements suggested that national energy priorities and security concerns might relieve the petrochemical sector from the relentless enforcement focus of prior EPAs, particularly the Biden EPA. This Enforcement Alert suggests that this may not be the case.
EPA’s enforcement paradigm of reinterpreting old rules for new enforcement ends, sometimes dubbed “rulemaking-by-enforcement,” remains fully intact. The Refinery MACT fenceline monitoring requirements are not emissions standards, but rather, work practice standards. They require refineries to monitor benzene at the fenceline and implement corrective actions when certain benzene “action levels” above background are exceeded.
However, a fence is not an emissions point, and the benzene action level is not an emissions standard. Yet the Alert suggests that EPA intends to leverage benzene data to achieve more far-reaching monitoring and technology controls—well beyond existing requirements and completely absent from the fenceline monitoring rules themselves. In particular, EPA’s wish list of best practices suggests that EPA seeks: (1) short-term emissions data, not the longer-term averages required by the Refinery MACT fenceline monitoring rules; (2) a focus on individual pieces of equipment instead of the ambient monitoring required by the Refinery MACT; and (3) real-time monitoring, also not required by the Refinery MACT.
The logical result of extending the Refinery MACT requirements in this manner is to compel substantial capital expenditures for pollution control equipment that no CAA rules currently require—e.g., flare gas recovery systems and leak-free designs. After all, real-time exceedances trigger real-time corrective action, and the goal of the Alert seems to be to “find” more and more “exceedances” that require such action.
EPA’s history under the Biden administration sought exactly that. For example, the Alert opaquely features a recent Consent Decree that resulted not only in significant additional fenceline monitoring requirements, but also in an estimated $137 million in injunctive relief, including flare gas recovery, scrubbers, and leak detection and repair (LDAR) improvements, among others. While the Trump administration has portrayed itself as standing against administrative overreach and rulemaking-by-enforcement, the Alert suggests EPA’s objectives – and strategies – remain the same: extra-regulatory relief through enforcement outside the norms of the CAA or the Administrative Procedure Act. Indeed, the Alert itself appears entirely inconsistent with the Administration’s Executive Order, which requires enforcement based on the plain text of the rules.
EPA continues to focus on hazardous air pollutants using benzene as a surrogate for other constituents.Earlier this year, EPA refined the Biden EPA’s two-year enforcement priorities but did not repeal them. This new Enforcement Alert names benzene a “surrogate” for other hazardous air pollutants (HAPs)—a position that industry has long suspected is EPA’s view. The Alert flatly previews enforcement of the Agency’s suite of benzene rules to achieve HAP emissions reductions that EPA may contend are not fully regulated —e.g., ethylene oxide, 1,3 butadiene.
Who Is Affected?
Petroleum refineries and chemical manufacturing facilities with fenceline monitoring requirements for benzene by rule, permit, or enforcement order should be aware of this Alert and its potential implications. While the Alert is directed at refineries, EPA has demanded benzene fenceline monitoring through enforcement, such as the flaring consent decrees covering chemical manufacturing facilities. Those facilities could also soon see enforcement for similar fenceline compliance issues.
What Can You Do?
Plant and facility owners and operators should evaluate fenceline monitoring data. If facilities consistently exceed benzene action levels, companies should evaluate whether root cause analyses are sufficient and whether additional corrective action may be warranted, especially for EPA-identified areas of concern—tanks, marine loading, and wastewater systems. Consider how benzene emissions are calculated and monitored. Where permitted emissions limits are based on calculations instead of actual emissions data (for example, using emission factors such as AP-42 for tanks), consider whether actual emissions might be higher, which would give EPA a foothold to claim continuing permit violations. Consider also whether fenceline monitoring data is publicly available. If EPA does not bring an enforcement action, consistent exceedances of action levels could give rise to community concerns and prompt possible citizen suits.
Background
The CAA Refinery MACT (40 C.F.R. Part 63, Subpart CC) applies to petroleum refining process units and related emission points at a plant site that is a major source under CAA Section 112(a), 42 U.S.C. § 7412(a), and that emit or have equipment containing or contacting one or more of the hazardous air pollutants listed in Table 1 of Subpart CC. 40 C.F.R. § 63.658 requires refinery owners or operators to, among other things:
- Conduct passive air sampling and collect a sample every 14 days at specified fenceline locations;
- Calculate an annual rolling average benzene concentration based on the average of the 26 most recent 14-day sampling periods;
- Compare the annual average benzene concentration to the 9 µg/m³ benzene action level; and
- If the action level is exceeded, conduct a root cause analysis and identify and implement corrective actions.
Identified Compliance Issues
As noted above, the Enforcement Alert observes that causes of benzene action level exceedances include storage tanks containing high benzene content material, marine vessel loading operations, and uncontrolled wastewater operations. The Alert also highlights a recently resolved enforcement case in which a refiner allegedly exceeded the action level on multiple occasions and failed to determine and implement appropriate corrective actions to reduce fenceline benzene concentrations below the action level. EPA alleged that the refinery returned a tank containing benzene material to service despite determining that the tank was the primary emissions source causing the action level exceedances. The refinery agreed to: implement measures addressing benzene emissions sources contributing to the exceedances; install real-time benzene fenceline monitors; and identify and address emission sources identified by the real-time monitoring results.
What to Expect
This Enforcement Alert demonstrates that EPA remains laser-focused on benzene emissions, both as an individual HAP and as a surrogate for other HAPs. EPA will likely look to identify noncompliance with established benzene-related regulatory requirements using fenceline monitoring data, and then seek far-reaching injunctive relief beyond what might be reasonably required to address the alleged noncompliance. While the Alert includes only one example enforcement case, refiners and other facilities with benzene emissions that find themselves on the receiving end of a benzene-related enforcement action should expect EPA to demand injunctive relief elements similar to those achieved for BWON noncompliance in the BP Whiting settlement.