Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`__________________________________________
`)
`
`
`
`)
`ENVIRONMENTAL INTEGRITY PROJECT,
` )
`1000 Vermont Avenue NW, Suite 1100
` )
`Washington, DC 20005,
` )
`
`
`
` )
`CLEAN AIR COUNCIL,
` )
`135 S. 19th Street, Suite 300
` )
`Philadelphia, PA 19103,
` )
`
`
`
` )
`AIR ALLIANCE HOUSTON,
`)
`2520 Caroline Street, Suite 100
` )
`Houston, TX 77004,
` )
`
`
`
`CHESAPEAKE CLIMATE ACTION NETWORK )
`6930 Carroll Ave, Suite 720
` )
`Takoma Park, MD 20912,
` )
`
`
`
` )
`EARTHWORKS,
` ) Civil Action No. 1:20-cv-3119
`1612 K Street, NW, Suite 808
` )
`Washington, DC 20006,
` ) COMPLAINT FOR DECLARATORY
` ) AND INJUNCTIVE RELIEF
`)
`ENVIRONMENT AMERICA,
`)
`1543 Wazee Street, Suite 410
`)
`Denver, CO 80202,
`)
`
`
`
`)
`ENVIRONMENT AMERICA d/b/a
`)
`ENVIRONMENT TEXAS,
`)
`200 East 30th Street
`)
`Austin, TX 78705,
`)
`
`)
`HOOSIER ENVIRONMENTAL COUNCIL,
`)
`3951 N. Meridian, Suite 100
`)
`Indianapolis, IN 46208,
`)
`
`
`
`)
`PENNENVIRONMENT,
`)
`1429 Walnut Street, Suite 1100
`)
`Philadelphia, PA 19102,
`)
`
`
`
`TEXAS CAMPAIGN FOR THE ENVIRONMENT, )
`105 W. Riverside Drive, Suite 120,
`)
`Austin, TX 78704,
`)
`
`
`
`)
`Plaintiffs,
`
`
`)
`
`

`

`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 2 of 26
`
` )
`)
`
`v.
`
`)
`
`
`
`)
`ANDREW WHEELER, in his official capacity as
`)
`Administrator, United States Environmental
`)
`Protection Agency,
`)
`Office of the Administrator, Mail Code 1101A
`)
`1200 Pennsylvania Ave., N.W.
`)
`Washington, DC 20460,
`)
`
`
`
`Defendant.
`)
`
`
`__________________________________________ )
`
`
`INTRODUCTION
`
`
`
`1.
`
`With this action, Plaintiffs Environmental Integrity Project, Clean Air Council,
`
`Air Alliance Houston, Chesapeake Climate Action Network, Earthworks, Environment America,
`
`Environment Texas, Hoosier Environmental Council, PennEnvironment, and Texas Campaign
`
`for the Environment (“Plaintiffs”) seek to compel the U.S. Environmental Protection Agency
`
`(EPA), through the Defendant EPA Administrator Andrew Wheeler (“Administrator” or
`
`“Defendant”), to fulfill long-delayed nondiscretionary duties and review the general control
`
`device requirements for flares under the New Source Performance Standards (NSPS) and the
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`National Emission Standards for Hazardous Air Pollutants (NESHAP) (“NSPS General Flare
`
`Requirements” and “NESHAP General Flare Requirements,” respectively).
`
`2.
`
`The Administrator has failed to meet continuing nondiscretionary duties under the
`
`Clean Air Act to review the NSPS General Flare Requirements and NESHAP General Flare
`
`Requirements in accordance with sections 111(b)(1)(B) and 112(d)(6) and, where appropriate or
`
`necessary, to revise them within the time required by the Clean Air Act. 42 U.S.C. §§
`
`7411(b)(1)(B), 7412(d)(6). Specifically, EPA has not conducted the statutorily mandated review
`
`of either the NSPS General Flare Requirements or the NESHAP General Flare Requirements
`
`within the last eight years, as required by Clean Air Act sections 111(b)(1)(B) and 112(d)(6). Id.
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`2
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 3 of 26
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`In fact, based on Plaintiffs’ review of publicly available records, it is apparent that the
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`Administrator has not conducted the statutorily mandated review of the NSPS General Flare
`
`Requirements since their initial promulgation in 1986 or of the NESHAP General Flare
`
`Requirements since their initial promulgation in 1994.
`
`3.
`
`Flares are pollution control devices designed to destroy organic pollutants in
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`waste gases, which include hazardous pollutants and smog-forming compounds, through the
`
`combustion process. The NSPS General Flare Requirements and NESHAP General Flare
`
`Requirements establish certain work practices to maximize combustion efficiency and the
`
`corresponding destruction of organics in flare gas. For example, these practices include
`
`requiring that “the net heating value of the gas being combusted” in steam- and air-assisted flares
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`be at least 300 Btu per standard cubic foot of gas being combusted (300 Btu/scf), and limitations
`
`on “exit velocity” to avoid overwhelming the flare with more gas than it can burn efficiently.
`
`See 40 C.F.R. § 60.18(c)(3)(ii), (4), (5); 40 C.F.R. § 63.11(b)(6)(ii), (7), (8).
`
`4.
`
`In the decades since the NSPS General Flare Requirements’ and NESHAP
`
`General Flare Requirements’ initial promulgation, these standards no longer reflect the “the best
`
`system of emission reduction” under Clean Air Act section 111(a)(1), 42 U.S.C. § 7411(a)(1), or
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`“maximum degree of reduction in emissions” achievable under section 112(d)(2) of the Clean
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`Air Act. See 42 U.S.C. § 7412(d)(2). For example, the minimum heating values required under
`
`the NSPS General Flare Requirements and NESHAP General Flare Requirements apply to the
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`so-called “vent gas” that enters the bottom of the flare. Industry studies and EPA’s own research
`
`have confirmed that because monitoring is poor or infrequent, vent gas is often incorrectly
`
`assumed to have the required minimum heating value when it does not. And for steam- and air-
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`assisted flares, actual heating values can be much lower in the combustion zone at the flare tip
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`3
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 4 of 26
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`than they are in the vent gas routed to that flare because operators often add too much steam or
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`air during the combustion process, lowering the flare’s combustion efficiency and consequently
`
`increasing emissions of pollutants that the flare is meant to control.
`
`5.
`
`Furthermore, operators rely on the NSPS General Flare Requirements and
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`NESHAP General Flare Requirements to assure regulators that their flares will achieve certain
`
`destruction efficiencies, which in turn are used to estimate emissions, determine compliance with
`
`applicable limits, and determine the flares’ potential to emit. Regulated industries, and
`
`regulators in turn, often assume that compliance with the NSPS General Flare Requirements and
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`NESHAP General Flare Requirements will eliminate 98 percent of organic pollutants sent to the
`
`flare. Based on EPA’s own data and findings, however, the actual destruction efficiency of
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`flares operating under these outdated requirements can be 90 percent or even lower, meaning that
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`emissions are five or more times higher than estimated or reported by plant operators.
`
`6.
`
`The failure to review the NSPS General Flare Requirements and NESHAP
`
`General Flare Requirements is harmful because the available evidence, including EPA’s own
`
`analysis, shows that flares subject to the NSPS General Flare Requirements and NESHAP
`
`General Flare Requirements operate far below the desired 98-percent destruction efficiency,
`
`releasing correspondingly larger quantities of pollutants that are toxic, smog-forming, or
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`otherwise hazardous to the health of nearby communities. Industrial facilities with flares subject
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`to the NSPS General Flare Requirements and NESHAP General Flare Requirements—such as
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`petrochemical facilities, oil and natural gas production and processing facilities, bulk gasoline
`
`terminals, and municipal solid waste landfills—are disproportionately located in and near
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`communities of color and lower-income communities. As a result, these communities have
`
`higher incidences of asthma and other respiratory ailments. Most recently, these same
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`4
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 5 of 26
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`communities have been disproportionately affected by COVID-19, making the cumulative
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`effects on the communities’ respiratory health greater and the excess emissions from flares
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`subject to the outdated NSPS General Flare Requirements and NESHAP General Flare
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`Requirements all the more significant.
`
`7.
`
`Consequently, Plaintiffs bring this action to seek a determination by this Court
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`that the Administrator’s failures to fulfill each overdue duty and perform each action required by
`
`sections 111(b)(1)(B) and 112(d)(6) violate the Clean Air Act and to seek an order by this Court
`
`compelling the Administrator to fulfill each duty and take each required action in accordance
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`with expeditious deadlines set by this Court.
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`JURISDICTION AND VENUE
`
`This action arises under the Clean Air Act’s citizen suit provision. 42 U.S.C. §
`
`8.
`
`7604(a)(2).
`
`9.
`
`This Court has jurisdiction over this action pursuant to 42 U.S.C. § 7604(a)(2), 28
`
`U.S.C. § 1331, and 28 U.S.C. § 1361.
`
`10.
`
`This Court may award Plaintiffs all necessary relief pursuant to 42 U.S.C. §
`
`7604(a)(2) and 28 U.S.C. §§ 2201-2202.
`
`11.
`
`Plaintiffs have provided Defendant with at least sixty days’ written notice of the
`
`violations of law alleged herein in the form and manner required by the Clean Air Act. 42
`
`U.S.C. § 7604(b)(2); 40 C.F.R. Part 54. Copies of Plaintiffs’ notice letters are attached as
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`Exhibit A and Exhibit B to this Complaint.
`
`12.
`
`Venue is vested in this Court under 28 U.S.C. § 1391(e) because a substantial
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`part of the events or omissions giving rise to the claims occurred in this district and the
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`Administrator’s office is in the District of Columbia.
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`5
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 6 of 26
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`The Plaintiffs
`
`PARTIES
`
`13.
`
`Plaintiff Environmental Integrity Project (EIP) is a national nonprofit organization
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`existing and organized under the laws of the District of Columbia. EIP is dedicated to
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`advocating for more effective enforcement of environmental laws. EIP has three goals: (1) to
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`provide objective analyses of how the failure to enforce or implement environmental laws
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`increases pollution and affects public health; (2) to hold federal and state agencies, as well as
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`individual corporations, accountable for failing to enforce or comply with environmental laws;
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`and (3) to help local communities obtain the protection of environmental laws.
`
`14.
`
`Plaintiff Clean Air Council (“Council”) is a nonprofit, member-based
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`environmental organization headquartered in Philadelphia, Pennsylvania. For more than 50
`
`years, the Council has fought to improve the air quality across Pennsylvania and Delaware. The
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`Council’s mission is to protect everyone’s right to a healthy environment.
`
`15.
`
`Plaintiff Air Alliance Houston is a research-based nonprofit organization that
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`advocates in partnership with communities disproportionately burdened by air pollution for
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`public policies that improve air quality, promote public health, and advance environmental
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`justice.
`
`16.
`
`Plaintiff Chesapeake Climate Action Network (CCAN) is a grassroots, nonprofit
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`organization founded to transition the region towards clean-energy solutions to climate change,
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`specifically in Maryland, Virginia, and Washington, D.C. CCAN’s mission is to educate and
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`mobilize citizens in a way that fosters a rapid societal switch to clean energy sources. This
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`mission includes ensuring that facilities that contribute to global warming do not impact the
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`health of CCAN’s members or the environment through the release of dangerous pollutants.
`
`6
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`17.
`
`Plaintiff Earthworks is a nonprofit organization dedicated to protecting
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`communities and the environment from the impacts of irresponsible mineral and energy
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`development while seeking sustainable solutions. Earthworks fulfills its mission by working
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`with communities and grassroots groups to reform government policies, improve corporate
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`practices, influence investment decisions, and encourage responsible materials sourcing and
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`consumption.
`
`18.
`
`Plaintiff Environment America is a national, member-supported, nonprofit
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`organization existing and organized under the laws of the state of Colorado. It has hundreds of
`
`thousands of members across the country. Environment America’s mission is to transform the
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`power of our imaginations and our ideas into change that makes our world a greener and
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`healthier place for all. Environment America’s staff of organizers, advocates, and lawyers use
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`research, advocacy, and litigation to work for clean air, clean water, clean energy, wildlife and
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`open spaces, and a livable climate.
`
`19.
`
`Plaintiff Environment Texas is the name under which Environment America does
`
`business in Texas. Environment Texas advocates for clean air, clean water, and the preservation
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`of Texas’ natural resources.
`
`20.
`
`Plaintiff Hoosier Environmental Council is a nonprofit public-interest
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`environmental advocacy corporation organized and existing under Indiana law. Hoosier
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`Environmental Council is Indiana’s largest environmental public policy organization, working to
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`improve environmental health, protect land and water, and foster a sustainable economy for
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`thirty-seven years, through education, technical assistance, and advocacy.
`
`21.
`
`Plaintiff PennEnvironment is a nonprofit, member-supported environmental
`
`organization existing and organized under the laws of the commonwealth of Pennsylvania.
`
`7
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 8 of 26
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`PennEnvironment advocates for clean air, clean water, and the preservation of Pennsylvania’s
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`natural resources. It has over 11,000 members across Pennsylvania.
`
`22.
`
`Plaintiff Texas Campaign for the Environment (TCE) is a nonpartisan, nonprofit
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`organization dedicated to informing and mobilizing Texans to protect the quality of their lives,
`
`their health, their communities, and the environment. TCE works to hold government and
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`corporations accountable to public concern on Texas health, environmental, and economic
`
`issues. TCE promotes policies that protect our air, water, and citizens’ right to know about
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`pollution in their communities.
`
`23.
`
`24.
`
`Plaintiffs bring this action on behalf of themselves and their members.
`
`Plaintiffs and their members have been and continue to be adversely affected by
`
`Defendant’s failure to review and, where appropriate or necessary, revise the NSPS General
`
`Flare Requirements and NESHAP General Flare Requirements required in accordance with
`
`sections 111(b)(1)(B) and 112(d)(6), 42 U.S.C. §§ 7411(b)(1)(B), 7412(d)(6), within the
`
`timeframes required by the Clean Air Act.
`
`25.
`
`Plaintiffs’ members include individuals who live, work, or recreate near industrial
`
`facilities with flares that are subject to the NSPS General Flare Requirements and NESHAP
`
`General Flare Requirements, including petrochemical facilities, oil and natural gas production
`
`and processing facilities, bulk gasoline terminals, municipal solid waste landfills, and volatile
`
`organic liquid storage vessels.
`
`26.
`
`Due to the Administrator’s ongoing failures to take the actions required by
`
`sections 111(b)(1)(B) and 112(d)(6), 42 U.S.C. §§ 7411(b)(1)(B), 7412(d)(6), the NSPS General
`
`Flare Requirements and NESHAP General Flare Requirements remain outdated, and flares
`
`8
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 9 of 26
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`subject to these standards do not operate at the expected destruction efficiency, releasing excess
`
`harmful, toxic, and smog-forming pollutants into the air.
`
`27.
`
`Plaintiffs’ members have encountered harmful, toxic, and smog-forming
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`pollutants emitted from facilities subject to the NSPS General Flare Requirements and NESHAP
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`General Flare Requirements in the past and/or reasonably fear that they will encounter these
`
`emissions in the future. Plaintiffs’ members also have a reasonable concern about suffering
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`harm to their health, aesthetic, recreational, and other interests due to exposure to harmful, toxic,
`
`and smog-forming pollutants emitted by facilities subject to the NSPS General Flare
`
`Requirements and NESHAP General Flare Requirements. Plaintiffs’ members enjoy natural
`
`resources that are or are likely to be adversely affected by these emissions. Plaintiffs’ members
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`have regularly faced and currently live subject to the likelihood of continuing to experience
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`emissions from these facilities that undermine their ability to live their lives and follow day-to-
`
`day routines and threaten their ability to enjoy being inside their homes, as well as their ability to
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`walk, bike, garden, play, or sit outside near their home.
`
`28.
`
`The Administrator’s failure to conduct the statutorily mandated review and, where
`
`appropriate or necessary, revise the NSPS General Flare Requirements and NESHAP General
`
`Flare Requirements prolongs Plaintiffs’ members’ exposures, risks, and reasonable fears.
`
`29.
`
`The Administrator’s failure to review and make necessary revisions to the NSPS
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`General Flare Requirements and NESHAP General Flare Requirements has also harmed
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`Plaintiffs’ abilities to fulfill and achieve their organizational objectives of protecting their
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`members, their communities, the environment, and the public from the human health and
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`environmental risks of emissions from facilities within categories subject to the NSPS General
`
`Flare Requirements and NESHAP General Flare Requirements.
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`9
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 10 of 26
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`30.
`
`Plaintiffs’ missions also include public education, advocacy, public health
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`research, community air quality monitoring, and litigation to enforce and strengthen
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`environmental laws and to prevent, reduce, and mitigate toxic air pollution and its adverse
`
`effects, including from facilities within the categories subject to the NSPS General Flare
`
`Requirements and NESHAP General Flare Requirements. As part of and in furtherance of their
`
`missions, Plaintiffs analyze and provide their members and the public, in person and through
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`media, with information regarding the adverse impacts of air pollution and the potential for
`
`stricter pollution controls from these facilities. It is a core part of Plaintiffs’ missions to provide
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`this type of information and educational service to their members to assist their members in
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`advocating for greater protection for their health, aesthetic, recreational, and other legally
`
`protected interests. As a result of the outdated NSPS General Flare Requirements and NESHAP
`
`General Flare Requirements, the actual and potential emissions from such facilities are likely not
`
`properly estimated. Estimates of facilities’ emissions rely on their flares’ destruction efficiency,
`
`and flares subject only to the NSPS General Flare Requirements and NESHAP General Flare
`
`Requirements often fail to perform at the expected efficiency.
`
`31.
`
`These injuries to Plaintiffs and Plaintiffs’ members would be redressed by a
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`declaratory judgment that Administrator’s failure to conduct the statutorily mandated review of
`
`the NSPS General Flare Requirements and NESHAP General Flare Requirements in accordance
`
`with Clean Air Act sections 111(b)(1)(B) and 112(d)(6), 42 U.S.C. §§ 7411(b)(1)(B), 7412(d)(6),
`
`within the statutorily required timeframes violates the Clean Air Act and by an order compelling
`
`the Administrator to review the NSPS General Flare Requirements and NESHAP General Flare
`
`Requirements and either promulgate revisions or make a final determination that such revisions
`
`are not necessary by a date certain.
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`10
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 11 of 26
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`The Defendant
`
`32.
`
`Defendant Andrew Wheeler, Administrator of EPA, is the federal official
`
`responsible for EPA’s administration of its legal authorities and duties, including the duties
`
`under the Clean Air Act to review and, where appropriate, revise the NSPS General Flare
`
`Requirements in accordance with section 111(b)(1)(B) of the Clean Air Act, 42 U.S.C. §
`
`7411(b)(1)(B), and to review and, where necessary, revise the NESHAP General Flare
`
`Requirements in accordance with the requirements of section 112(d)(6) of the Clean Air Act, 42
`
`U.S.C. § 7412(d)(6).
`
`33.
`
`Plaintiffs sue Administrator Wheeler in his official capacity.
`
`STATUTORY AND REGULATORY FRAMEWORK
`
`34.
`
`The Clean Air Act was established “to protect and enhance the quality of the
`
`Nation’s air resources so as to promote the public health and welfare and the productive capacity
`
`of its population” and “to initiate and accelerate a national research and development program to
`
`achieve the prevention and control of air pollution.” 42 U.S.C. § 7401(b).
`
`35.
`
`A “primary goal” of the Clean Air Act is “pollution prevention.” 42 U.S.C. §
`
`7401(c).
`
`36.
`
`In furtherance of these goals, the Clean Air Act prescribes a regulatory framework
`
`that mandates EPA to set and periodically review standards of performance for new sources of
`
`air pollution and standards that limit hazardous air pollutants (HAP).
`
`37.
`
`Section 111 of the Clean Air Act requires the Administrator to publish a list of
`
`categories of stationary sources that “cause[], or contribute[] significantly to, air pollution which
`
`may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b)(1)(A).
`
`11
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 12 of 26
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`For each category, the Administrator must establish “Federal standards for performance of new
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`sources within such category.” 42 U.S.C. § 7411(b)(1)(B).
`
`38.
`
`Once the Administrator has promulgated performance standards for new sources
`
`within a category, section 111 requires that “[t]he Administrator shall, at least every 8 years,
`
`review and, if appropriate, revise such standards following the procedure required by this
`
`subsection for promulgation of such standards.” Id. “Notwithstanding the requirements of the
`
`previous sentence, the Administrator need not review any such standard if the Administrator
`
`determines that such review is not appropriate in light of readily available information on the
`
`efficacy of such standard.” Id.
`
`39.
`
`Section 111(h) allows the Administrator, where he has determined “it is not
`
`feasible to prescribe or enforce a standard of performance,” to “instead promulgate a design,
`
`equipment, work practice, or operational standard, or combination thereof, which reflects the
`
`best technological system of continuous emission reduction . . . .” See 42 U.S.C. § 7411(h)(1).
`
`Any such “design, equipment, work practice, or operational standard, or any combination thereof
`
`. . . shall be treated as a standard of performance,” including with respect to the eight-year review
`
`and revision deadlines of subsection (b). See 42 U.S.C. § 7411(h)(5).
`
`40.
`
`As revised by the 1990 Clean Air Act Amendments, section 112 of the Act sets
`
`out requirements for the regulation of sources of hazardous air pollutants. 42 U.S.C. § 7412.
`
`The Administrator must establish a list of categories of major sources of hazardous air pollutants.
`
`42 U.S.C. § 7412(c)(1).
`
`41.
`
`Under section 112(d), the Administrator must promulgate regulations establishing
`
`emission standards for each category or subcategory of major sources and area sources of
`
`hazardous air pollutants. 42 U.S.C. § 7412(d)(1)-(3). Thereafter, “[t]he Administrator shall
`
`12
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 13 of 26
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`review, and revise as necessary (taking into account developments in practices, processes, and
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`control technologies), emission standards promulgated under this section no less often than every
`
`8 years.” 42 U.S.C. § 7412(d)(6).
`
`FACTUAL BACKGROUND
`
`The NSPS General Flare Requirements
`
`42.
`
`EPA first promulgated the NSPS General Flare Requirements set forth in 40
`
`C.F.R. § 60.18(b)-(f) in January 1986 under the “General Provisions” of 40 C.F.R. Part 60. See
`
`EPA, Equipment Leaks from Synthetic Organic Chemical Manufacturing Industry; Natural Gas
`
`Processing Plants; Equipment Leaks of Benzene Flare Requirements, 51 Fed. Reg. 2,699 (Jan.
`
`21, 1986).
`
`43.
`
`EPA’s rulemaking for the NSPS General Flare Requirements began as part of a
`
`reconsideration proceeding regarding flare standards for one specific stationary source category,
`
`but “EPA also determined that the revised exit velocity limitation for flares should apply to
`
`several other standards in Parts 60 and 61.” For this reason, EPA decided to promulgate
`
`standards for flares used as control devices that would apply to multiple subparts under 40 C.F.R.
`
`Part 60 and Part 61—including, at that time, Subparts VV, NNN and Kb of 40 C.F.R. Part 60 and
`
`Subparts L and V of Part 61—“plac[ing] the flare requirements in the General Provisions of Part
`
`60 for easy reference by all subparts in Part 60 and Part 61.” Id. at 2,701.
`
`44.
`
`EPA based the NSPS General Flare Requirements on identical flare requirements
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`that it promulgated in 1985 for Subpart KKK of Part 60—natural gas processing plants—and the
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`agency simultaneously amended that subpart’s requirements to reference the General Flare
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`Requirements instead. Id.
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 14 of 26
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`45.
`
`To date, at least sixteen subparts under 40 C.F.R. Part 60 incorporate the NSPS
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`General Flare Requirements by reference:
`
`Subparts Cc, Cf, WWW, and XXX (Municipal solid waste landfills);
`
`Subpart Kb (Volatile organic liquid storage vessels);
`
`Subparts VV and VVa (Synthetic organic chemical manufacturing
`industry (SOCMI) equipment leaks);
`
`Subpart XX (Bulk gasoline terminals);
`
`Subpart DDD (Polymer manufacturing industry);
`
`Subpart III (SOCMI air oxidation unit processes);
`
`Subpart KKK (Onshore natural gas processing plants);
`
`Subpart NNN (SOCMI distillation operations);
`
`Subpart QQQ (Petroleum refinery wastewater systems; and
`
`Subpart RRR (SOCMI reactor processes);
`
`Subparts OOOO and OOOOa (Oil and natural gas production,
`transmission, and distribution).
`
`
`
`
`
`
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`
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`46.
`
`EPA has not conducted the statutorily mandated review of the NSPS General
`
`Flare Requirements within the last eight years, as required by Clean Air Act section
`
`111(b)(1)(B), nor has the Administrator determined that “such review is not appropriate in light
`
`of readily available information on the efficacy of such standard.” 42 U.S.C. § 7411(b)(1)(B).
`
`47.
`
`Based on Plaintiffs’ review of publicly available records, it appears that EPA has
`
`not conducted the required review of the NSPS General Flare Requirements since their initial
`
`promulgation in 1986.
`
`48.
`
`As provided in Plaintiffs’ notice letter dated June 11, 2020, EPA has made minor
`
`amendments to the NSPS General Standards or other subsections of 40 C.F.R. § 60.18 on several
`
`14
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`

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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 15 of 26
`
`occasions since 1986, but none of these constituted the required review of the standards of
`
`performance, nor did any of the amendments take place within the last eight years. The most
`
`recent amendment occurred in 2008. See Ex. A at 2-4.
`
`49.
`
`Even under the interpretation most favorable to EPA—that the 2008 amendment
`
`did constitute the required review—EPA has not conducted the statutorily mandated review of
`
`the NSPS General Flare Requirements under section 111(b)(1)(B) within the last eight years. 42
`
`U.S.C. § 7411(b)(1)(B).
`
`The NESHAP General Flare Requirements
`
`50.
`
`EPA first promulgated the NESHAP General Flare Requirements under 40 C.F.R.
`
`§ 63.11(b) in March 1994 under the “General Provisions” of 40 C.F.R. Part 63. See EPA,
`
`National Emission Standards for Hazardous Air Pollutants for Source Categories: General
`
`Provisions, 59 Fed. Reg. 12,408 (March 16, 1994).
`
`51.
`
`EPA stated that in promulgating the NESHAP General Flare Requirements under
`
`the General Provisions of 40 C.F.R. Part 63, it was following “the approach taken previously by
`
`the EPA in developing and implementing new source performance standards (NSPS) under
`
`section 111 of the Act”: i.e., the NSPS General Flare Requirements. Id. at 12,411.
`
`52.
`
`EPA stated that the General Provisions of 40 C.F.R. Part 63 “contain provisions
`
`that are common to relevant standards such as definitions, and requirements for initial
`
`notifications, performance testing, monitoring, and reporting and recordkeeping. The
`
`establishment of General Provisions for part 63 standards eliminates the need to repeat common
`
`elements in each source category-specific standard.” Id. EPA also stated that “[t]he General
`
`Provisions have the legal force and effect of standards, and they may be enforced independently
`
`of relevant standards, if appropriate.” Id. at 12,408.
`
`15
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`

`

`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 16 of 26
`
`53.
`
`EPA has not conducted the statutorily mandated review of the NESHAP General
`
`Flare Requirements within the last eight years, as required by Clean Air Act section 112(d)(6).
`
`42 U.S.C. § 7412(d)(6).
`
`54.
`
`Based on Plaintiffs’ review of publicly available records, it appears that EPA has
`
`not conducted the required review of the NESHAP General Flare Requirements since their initial
`
`promulgation in 1994.
`
`55.
`
`Since EPA’s 1994 promulgation of the NESHAP General Flare Requirements,
`
`EPA has not conducted the statutorily mandated review under Clean Air Act section 112(d)(6).
`
`42 U.S.C. § 7412(d)(6).
`
`56.
`
`As provided in Plaintiffs’ notice letter dated August 17, 2020, EPA has made
`
`minor amendments to the NESHAP General Standards or other subsections of 40 C.F.R. § 63.11
`
`on several occasions since 1994, but none of these constituted the required review of the
`
`emission standards, nor did any of the amendments take place within the last eight years. The
`
`most recent amendment occurred in 2008. See Ex. B at 3-4.
`
`57.
`
`Even under the interpretation most favorable to EPA—that the 2008 amendment
`
`did constitute the required review—EPA has not conducted the statutorily mandated review of
`
`the NESHAP General Flare Requirements within the last eight years. 42 U.S.C. § 7412(d)(6).
`
`58.
`
`In addition to EPA’s failure to conduct the statutorily mandated review of the
`
`NESHAP General Flare Requirements themselves, there are presently at least five categories of
`
`stationary sources within six subparts under 40 C.F.R. Part 63 that reference and incorporate the
`
`NESHAP General Flare Requirements, yet also are overdue for EPA’s statutorily mandated
`
`review. See EPA, Risk and Technology Review of the National Emissions Standards for
`
`Hazardous Air Pollutants, https://www.epa.gov/stationary-sources-air-pollution/risk-and-
`
`16
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`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 17 of 26
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`technology-review-national-emissions-standards-hazardous (last visited Oct. 23, 2020). These
`
`categories are:
`
`Source
`Category
`Gasoline
`Distribution
`
`Polymers and
`Resins I
`
`U
`
`Pharmaceuticals
`Production
`
`GGG
`
`April 2011
`(Epichlorohydrin
`Elastomers, Nitrile
`Butadiene Rubber,
`Polybutadiene
`Rubber, Styrene
`Butadiene Rubber
`and Latex)
`
`Dec. 2008
`(Polysulfide
`Rubber, Ethylene
`Propylene Rubber,
`Butyl Rubber,
`Neoprene)
`April 2011
`
`Hazardous
`Organics
`NESHAP
`
`G
`
`Dec. 2006
`
`17
`
`Subpart Last Revised
`
`Citation
`
`April 2006
`R
`BBBBBB Jan. 2011
`
`EPA, Gasoline Distribution MACT and
`GACT: National Emission Standards for
`Hazardous Air Pollutants (NESHAP) - 40
`CFR 63 Subparts R, BBBBBB &
`CCCCCC,
`https://www.epa.gov/stationary-sources-
`air-pollution/gasoline-distribution-mact-
`and-gact-national-emission-standards
`(last visited Oct. 23, 2020).
`
`EPA, National Emission Standards for
`Hazardous Air Pollutant Emissions:
`Group I Polymers and Resins, 76 Fed.
`Reg. 22,566 (April 21, 2011); EPA,
`National Emission Standards for
`Hazardous Air Pollutant Emissions:
`Group I Polymers and Resins, 73 Fed.
`Reg. 76,220 (Dec. 16, 2008).
`
`EPA, National Emission Standards for
`Hazardous Air Pollutant Emissions:
`Group I Polymers and Resins; Marine
`Tank Vessel Loading Operations;
`Pharmaceuticals Production; and the
`Printing and Publishing Industry, 76 Fed.
`Reg. 22,566 (April 21, 2011).
`
`EPA, National Emission Standards for
`Organic Hazardous Air Pollutants From
`the Synthetic Organic Chemical
`Manufacturing Industry, 71 Fed. Reg.
`76,603 (Dec. 21, 2006).
`
`
`
`

`

`Case 1:20-cv-03119-TNM Document 1 Filed 10/29/20 Page 18 of 26
`
`Oil and Natural
`Gas Production
`
`HH
`
`Aug. 2012
`
`EPA, Oil and Natural Gas Sector: New
`Source Performance Standards and
`National Emission Standards for
`Hazardous Air Pollutants Reviews, 77
`Fed. Reg. 49,490 (Aug. 16, 2012); see,
`e.g., 40 C.F.R. § 63.769(c)(8)