Case 2:21-cv-00114-MLCF-JVM Document 1 Filed 01/19/21 Page 1 of 47
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF LOUISIANA
`NEW ORLEANS DIVISION
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`Civil Action No.
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`____________________________________
`THE UNITED STATES OF AMERICA
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`and the LOUISIANA DEPARTMENT OF )
`ENVIRONMENTAL QUALITY,
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`Plaintiffs,
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`v.
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`THE DOW CHEMICAL COMPANY,
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`UNION CARBIDE CORPORATION, and )
`PERFORMANCE MATERIALS NA, INC., )
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`Defendants.
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`Plaintiffs, the United States of America (United States), by the authority of the Attorney
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`COMPLAINT
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`General, and through the undersigned attorneys, acting on behalf of the Administrator of the
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`United States Environmental Protection Agency (EPA), and the Louisiana Department of
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`Environmental Quality (LDEQ), file this Complaint and allege as follows:
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`I. NATURE OF THE ACTION
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`1.
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`This civil action seeks injunctive relief and civil penalties from The Dow
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`Chemical Company (Dow), and its wholly owned subsidiaries Union Carbide Corporation
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`(Union Carbide) and Performance Materials NA, Inc. (PMNA) (collectively, Defendants) for
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`violations of the Clean Air Act, 42 U.S.C. § 7401 et seq. (CAA), the Louisiana Environmental
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`Quality Act, La. R.S. 30:2001 et seq. (LEQA), the regulations promulgated pursuant to those
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`statutes, and the operating permits that incorporate those requirements.
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`2.
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`The United States brings this case pursuant to Clean Air Act Sections 113(b) and
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`167, 42 U.S.C. §§ 7413(b) and 7477, based on the Defendants’ alleged failures to adhere to good
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`air pollution control practices, including its failures to properly operate, maintain, monitor, and
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`control steam-assisted flares at four of Defendants’ petrochemical manufacturing facilities.
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`Defendant Dow owns and operates the facilities located in Freeport, Texas (Freeport Facility)
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`and Plaquemine, Louisiana (Plaquemine Facility). Defendant Union Carbide owns and operates
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`the facility located in Hahnville, Louisiana (Hahnville Facility). Defendant PMNA owns and
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`operates the facility located in Orange, Texas (Orange Facility) (collectively, Defendants’
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`Facilities). LDEQ brings this case pursuant to the LEQA based on these same failures with
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`respect to Defendants’ Plaquemine and Hahnville Facilities.
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`3.
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`Defendants’ alleged violations of the CAA and the LEQA resulted in thousands of
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`tons of illegal emissions of volatile organic compounds (VOCs), hazardous air pollutants
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`(HAPs), and other pollutants into the air in the states of Louisiana and Texas.
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`II. JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction over the subject matter and the parties hereto, pursuant
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`to Section 113(b) of the CAA, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1331, 1345, and 1355.
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`This Court has personal jurisdiction over the Defendants because they do business in the state of
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`Louisiana and within the jurisdictional boundaries for the federal district court for the Eastern
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`District of Louisiana, as established by Congress under 28 U.S.C. § 98(a).
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`5.
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`This Court has supplemental jurisdiction over the state law claims asserted by the
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`LDEQ pursuant to 28 U.S.C. § 1367 because those claims are so related to the claims alleged in
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`the United States’ action that they form part of the same case or controversy.
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`6.
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`Venue is proper in this Judicial District, pursuant to CAA Section 113(b), 42
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`U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b) and (c) and 1395(a), because the violations alleged
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`in this Complaint occurred and are occurring at the Defendants’ Facilities located in this District.
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`III. NOTICE
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`7.
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`Notices of violations were given to Defendants, and the states of Louisiana and
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`Texas as required by CAA Section 113(a)(1), 42 U.S.C. § 7413(a)(1). Notice of commencement
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`of this action was given to the states of Louisiana and Texas as required by CAA Section 113(b),
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`42 U.S.C. § 7413(b).
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`8.
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`The thirty-day period established in CAA Section 113(a), 42 U.S.C. § 7413(a),
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`between the notices of violation provided by the United States and the commencement of this
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`civil action has passed.
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`IV. AUTHORITY
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`9.
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`The United States Department of Justice has the authority to bring this action on
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`behalf of EPA under, inter alia, 28 U.S.C. §§ 516 & 519, and under Section 305(a) of the CAA,
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`42 U.S.C. § 7605(a).
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`V. DEFENDANTS
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`10.
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`Defendant Dow Chemical Company is a Delaware corporation that does business
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`in the states of Louisiana and Texas.
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`11.
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`At all times relevant to the Complaint, Defendant Dow has owned and operated
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`the following facilities: a) Plaquemine Petrochemical Plant, Plaquemine, Louisiana (Plaquemine
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`Facility), and b) Freeport Petrochemical Plant, Freeport, Texas (Freeport Facility).
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`12.
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`Defendant Union Carbide Corporation is a New York corporation authorized to
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`do business in the state of Louisiana. Union Carbide is organized and operates as a wholly
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`owned subsidiary of Defendant Dow.
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`13.
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`At all times relevant to the Complaint, Defendant Dow, or a predecessor-in-
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`interest, both directly or through Defendant Union Carbide has owned and operated a
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`petrochemical manufacturing plant located in Hahnville, Louisiana (Hahnville Facility).
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`14.
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`Defendant Performance Materials NA, Inc., is a Delaware corporation authorized
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`to do business in the state of Texas. PMNA operates and is organized as a wholly owned
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`subsidiary of Defendant Dow.
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`15.
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`At all times relevant to the Complaint, Defendant Dow, or a predecessor-in-
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`interest, both directly, or through Defendant PMNA has owned and operated the Sabine River
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`Works plant located in Orange, Texas (Orange Facility).
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`16.
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`The Plaquemine, Freeport, Hahnville, and Orange Facilities are collectively
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`referred to as the “Defendants’ Facilities.”
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`17.
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`At all times relevant to the Complaint, each of the Defendants has been a
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`“person” within the meaning of Section 302(e) of the CAA, 42 U.S.C. § 7602(e) and the
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`applicable federal and state regulations alleged herein.
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`VI. CLEAN AIR ACT STATUTORY AND REGULATORY BACKGROUND
`A. National Ambient Air Quality Standards (NAAQS) and New Source Review (NSR)
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`1. General
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`18.
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`CAA Section 108(a), 42 U.S.C. § 7408(a), requires EPA to identify and prepare a
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`list of each air pollutant that results from numerous or diverse mobile or stationary sources and
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`that may endanger public health or welfare through its emissions. EPA must then issue air
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`quality criteria for each such “criteria” air pollutant.
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`19.
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`CAA Section 109, 42 U.S.C. § 7409, requires EPA to promulgate regulations
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`establishing primary and secondary NAAQS for air pollutants for which air quality criteria have
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`been issued pursuant to Section 108 of the CAA. Under Section 109(b) of the CAA, 42 U.S.C.
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`§ 7409(b), the primary NAAQS must be adequate to protect the public health with an adequate
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`margin of safety. The secondary NAAQS must be adequate to protect the public welfare from
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`known or anticipated adverse effects associated with the presence of the air pollutant in the
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`ambient air.
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`20.
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`Pursuant to CAA Sections 108 and 109, 42 U.S.C. §§ 7408 and 7409, EPA has
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`identified and listed air quality criteria and NAAQS for the following criteria air pollutants:
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`ground level ozone, particulate matter (PM), nitrogen dioxide, carbon monoxide (CO), lead,
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`sulfur dioxide (SO2) (collectively, the Criteria Pollutants). See 40 C.F.R. §§ 50.8-50.11 (primary
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`NAAQS); see also 40 C.F.R. §§ 50.15 and 50.19 (secondary NAAQS).
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`21.
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`22.
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`VOCs readily react in sunlight with NOx – forming the criteria pollutant ozone.
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`Pursuant to CAA Section 107(d), 42 U.S.C. § 7407(d), each state is required to
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`designate those areas within its boundaries (known as “air quality control regions”) where the air
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`quality is better or worse than the NAAQS for each criteria pollutant, or where the air quality
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`cannot be classified due to insufficient data. An area that meets the NAAQS for a particular
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`pollutant is deemed an “attainment” area, while an area that does not meet the NAAQS for a
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`particular pollutant is deemed a “non-attainment” area. The states’ air quality designations are
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`identified at 40 C.F.R. Part 81.
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`23.
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`At all times relevant to this Complaint, St. Charles Parrish, Louisiana, where the
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`Hahnville Facility is located has been classified as “in attainment” for all Criteria Pollutants.
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`24.
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`At all times relevant to this Complaint, Iberville Parrish, Louisiana, where the
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`Plaquemine Facility is located has been classified as “in attainment” for all Criteria Pollutants.
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`25.
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`At all times relevant to this Complaint, Orange County, Texas, where the Orange
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`Facility is located has been classified as “in attainment” for all Criteria Pollutants.
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`26.
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`At all times relevant to this Complaint, Brazoria County, Texas, where the
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`Freeport Facility is located has been classified as “non-attainment” for ozone.
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`2. State Implementation Plans
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`27.
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`CAA Section 110, 42 U.S.C. § 7410, requires each state to adopt and submit to
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`the EPA for approval a plan that provides for the attainment and maintenance of the NAAQS in
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`each air quality control region within each state. This plan is known as a state implementation
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`plan (SIP). SIPs are enforceable by the respective states in which they are adopted, and pursuant
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`to CAA Section 113(b), 42 U.S.C. § 7413(b), by the United States.
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`28.
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`Of relevance to this Complaint, Section 110(a)(2)(C) of the CAA, 42 U.S.C.
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`§ 7410(a)(2)(C), requires each SIP to include, inter alia, “regulation of the modification and
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`construction of any stationary source . . . as necessary to assure that [NAAQS] are achieved,
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`including a[n NSR] permit program,” which includes the prevention of significant deterioration
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`(PSD) program required by part C of Subchapter I of the CAA.
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`3. Prevention of Significant Deterioration (PSD) Requirements
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`29.
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`Part C of Subchapter I of the CAA, 42 U.S.C. §§ 7470-7492, sets forth
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`requirements for the prevention of significant deterioration of air quality in those areas
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`designated as attainment areas for purposes of complying with the NAAQS. See 42 U.S.C.
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`§ 7470 (Purpose of PSD requirements). EPA’s regulations that implement the PSD program are
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`found at 40 C.F.R. § 52.21 (the PSD Regulations). Together, these provisions are referred to as
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`the “PSD program.”
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`30.
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`The core of the PSD program is the prohibition that “[n]o major emitting
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`facility…may be constructed in any [attainment] area” unless various requirements are met. See
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`42 U.S.C. § 7475(a). These requirements include, inter alia, obtaining a “PSD permit” with
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`emissions limitations based on the “best available control technology” (BACT) to control air
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`emissions. Id.; see also 40 C.F.R. § 52.21(j)-(r). The PSD regulations also require a
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`demonstration that emissions from a newly constructed or modified facility will not contribute to
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`a violation of a NAAQS. See 42 U.S.C. § 7475(a); 40 C.F.R. § 52.21(k).
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`31.
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`CAA Section 169(1), 42 U.S.C. § 7479(1), defines “major emitting facility” to
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`include any chemical process plant that emits or has the potential to emit 100 tons per year
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`(TPY) or more of any air pollutant. Major emitting facilities also include any other source with
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`the potential to emit 250 TPY or more of any air pollutant.
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`32.
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`The PSD regulations define construction as “any physical change in or change in
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`the method of operation (including fabrication, erection, installation, demolition, or
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`modification) which would result in a change in actual emissions.” 40 C.F.R. § 52.21(b)(8).
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`Construction is also defined to include the modification (as defined in CAA Section 111(a), 42
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`U.S.C. § 7411(a)) of any source or facility. 42 U.S.C. § 7479(2)(C).
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`33. Modification is defined as “any change in, or change in the method of operation
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`of, a stationary source which increases the amount of any air pollutant emitted by such source or
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`which results in the emission of any air pollutant not previously emitted.” 42 U.S.C. § 7411(a).
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`34.
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`The PSD regulations define major modification as “any physical change in or
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`change in the method of operation of a major stationary source that would result in a significant
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`new emission increase of any pollutant subject to regulation under the Act.” 40 C.F.R.
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`§ 52.21(b)(2)(i).
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`35.
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`The PSD regulations set individual thresholds for each criteria pollutant that
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`define whether a net emissions increase of a pollutant is significant. See 40 C.F.R.
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`§ 52.21(b)(23)(i). For ozone, significant means a net emissions increase of, or the potential of a
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`source to emit 40 TPY or more of VOCs or NOx. Id. For NOx, the significance threshold is 40
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`TPY. Id. For CO, the significance threshold is 100 TPY. Id.
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`36.
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`The PSD regulations define net emissions increase as “the amount by which the
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`sum of the following exceeds zero: a) any increase in actual emissions from a particular physical
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`change or change in method of operation at a stationary source and b) any other increases or
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`decreases in actual emissions at the source that are contemporaneous with the particular change
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`and are otherwise creditable.” 40 C.F.R. § 52.21(b)(3).
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`37.
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`In an attainment area, a newly constructed stationary source or a major
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`modification to an existing stationary source must install and operate BACT, as defined in 40
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`C.F.R. § 52.21(b)(12), for each pollutant subject to regulation under the CAA that it would have
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`the potential to emit in significant amounts or for which the modification would result in a
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`significant net emissions increase. 40 C.F.R. § 52.21(j)(2)-(j)(3).
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`4. Non-attainment NSR Requirements
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`38.
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`Part D of Subchapter I of the CAA, 42 U.S.C. §§ 7501-7515, sets forth
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`requirements that are intended, inter alia, to reduce emissions of air pollutants in areas that have
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`not attained the NAAQS.
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`39.
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`CAA Sections 110(a)(2)(C) and (I) and 172(c), 42 U.S.C. §§ 7410(a)(2)(C) and
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`(I) and 7502(c), require that each SIP contain requirements to review and permit newly
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`constructed or modified sources of criteria air pollutants in non-attainment areas (Non-attainment
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`NSR). Permits for these actions must be issued in accordance with CAA Section 173, 42 U.S.C.
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`§ 7503, and contain requirements that will facilitate “reasonable further progress” towards
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`attainment of NAAQS. 42 U.S.C. §§ 7502(c)(2) and (c)(5).
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`40.
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`CAA Section 173, 42 U.S.C. § 7503, requires that, in order to obtain a permit for
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`the construction or major modification of a major stationary source in a non-attainment area, the
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`owner and operator of the source must, inter alia: a) comply with the lowest achievable emission
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`rate (LAER), as defined in CAA Section 171(3), 42 U.S.C. § 7501(3); b) obtain federally
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`enforceable emission offsets at least as great as the new or modified source’s emissions; c)
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`conduct an air quality impact analysis; and d) analyze alternative sites, sizes, production
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`processes, and environmental control techniques for the proposed source, and then demonstrate
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`that the benefits of the proposed source significantly outweigh the environmental and social costs
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`imposed due to its location, construction, or modification. 42 U.S.C. §§ 7503(a)-(c); 40 C.F.R.
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`Part 51, Appendix S, Part IV, Conditions 1-4.
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`41. Major stationary source generally means any stationary source with the potential
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`to emit 100 TPY or more of any regulated NSR pollutant. 40 C.F.R. § 51.165(a)(1)(iv)(A).
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`However, in areas that are in non-attainment for ozone, lower thresholds may qualify a stationary
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`source of VOCs as a major stationary source. Id.
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`42.
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`Significant has the same meaning as under the PSD regulations, except that under
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`the Non-attainment NSR program, lower TPY thresholds may qualify as being significant.
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`40 C.F.R. § 51.165(a)(1)(x)(B).
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`5. PSD and Non-attainment NSR in Louisiana and Texas
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`43.
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`In addition to the requirements found in Section 110(a)(2)(c) of the CAA, 42
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`U.S.C. § 7410(a)(2)(c), Section 161 of the CAA, 42 U.S.C. § 7471, also requires that each SIP
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`contain a PSD program. A state may comply with Section 161 by having EPA delegate authority
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`to enforce federal PSD regulations set forth at 40 C.F.R. § 52.21, or by having its own PSD
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`regulations approved by EPA as part of its SIP. In order for EPA to approve a state PSD
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`program, the state requirements must be at least as stringent as the requirements set forth at 40
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`C.F.R. § 51.166.
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`44.
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`CAA Sections 110(a)(2)(C) and (I) and 172(c), 42 U.S.C. §§ 7410(a)(2)(C) and
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`(I) and 7502(c), require that each SIP contain requirements to attain the primary NAAQS in non-
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`attainment areas.
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`45.
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`A state may comply with CAA Sections 172 and 173 if EPA delegates authority
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`to enforce the federal Non-attainment NSR regulations to the state. A state may also comply by
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`promulgating its own Non-attainment NSR regulations that then must be approved by EPA as
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`part of the SIP. In order to be approved, a state’s Non-attainment NSR regulations must be at
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`least as stringent as those in 40 C.F.R. § 51.165.
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`46.
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`The EPA has approved Louisiana’s PSD and Non-attainment NSR permit
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`programs. See LAC 33:III.501 and 509 (PSD program) (approved Mar. 8, 1989, 54 Fed. Reg.
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`9795) and La. Admin. Code (LAC), Title 33, Part III, § 504 (Non-attainment NSR program)
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`(approved Sept. 30, 2002, 67 Fed. Reg. 61,260). See also 40 C.F.R. §§ 52.970 and 52.999(c)
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`(EPA approvals of subsequent revisions to Louisiana PSD and Non-attainment NSR program
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`requirements).
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`47.
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`The EPA has approved Texas’ PSD and Non-attainment NSR permit programs.
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`See 30 Texas Administrative Code (hereafter, TAC) §§ 116.160-116.163 (PSD program)
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`(approved Sept. 27, 1995, 60 Fed. Reg. 49,781) and 30 TAC §§ 116.150-116.151 (Non-
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`attainment NSR program) (approved Sept. 27, 1995, 60 Fed. Reg. 49,781). See also 40 C.F.R.
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`§§ 52.2273 and 52.2303 (EPA approvals of subsequent revisions to Texas PSD and Non-
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`attainment NSR program requirements).
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`48.
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`At all times relevant to this Complaint, Louisiana and Texas have been authorized
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`to issue and enforce PSD and Non-attainment NSR permits. In all respects relevant to this
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`Complaint, the Louisiana and Texas PSD and Non-attainment NSR regulations applicable to this
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`action closely, if not exactly, mirror the federal PSD regulations and Non-attainment NSR
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`requirements at 40 C.F.R. §§ 51.165 and 51.166, and 40 C.F.R. Part 51, Subpart S, Part IV.
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`49.
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`Pursuant to CAA Section 113(b), 42 U.S.C. § 7413(b), and 40 C.F.R. § 52.23,
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`EPA may enforce violations of Louisiana’s and Texas’ federally approved PSD program and
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`Non-attainment NSR program, as well as violations of permits issued pursuant to those
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`programs.
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`B. New Source Performance Standards
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`1. General
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`50.
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`CAA Section 111(b)(1)(A), 42 U.S.C. § 7411(b)(1)(A), requires EPA to publish
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`and periodically revise a list of categories of stationary sources that, in EPA’s judgment, cause of
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`contribute significantly to air pollution which may reasonably be anticipated to endanger public
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`health or welfare. These categories correspond to distinct manufacturing processes or equipment
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`within a given industry.
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`51.
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`Once a category is included on the list, CAA Section 111(b)(1)(B), 42 U.S.C.
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`§ 7411(b)(1)(B), requires EPA to promulgate a federal standard of performance for new sources
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`within the category, also known as the New Source Performance Standards (NSPS) for these
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`listed categories.
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`52.
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`Standard of Performance is defined as a “standard for emissions of air pollutants
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`which reflect the degree of emission limitation achievable through the application of the best
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`system of emission reduction which (taking into account the cost of achieving such reduction,
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`any non-air quality health and environmental impact, and energy requirements) the
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`Administrator determines has been adequately demonstrated.” 42 U.S.C. § 7411(a)(1).
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`53.
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`New Source is defined in the CAA as “any stationary source, the construction or
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`modification of which is commenced after the publication of the NSPS regulations or proposed
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`NSPS regulations applicable to such sources.” 42 U.S.C. § 7411(a)(2).
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`54.
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`Stationary Source is defined in the CAA as “a building, structure, facility, or
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`installation which emits or may emit any air pollutant.” 42 U.S.C. § 7411(a)(3).
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`55.
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`56.
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`The NSPS are located at 40 C.F.R. Part 60.
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`Clean Air Act Section 111(e), 42 U.S.C. § 7411(e), prohibits an owner or operator
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`of a new source from operating that source in violation of an NSPS after the effective date of the
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`NSPS applicable to such source.
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`2. NSPS Part 60, Subpart A: General Standards
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`57.
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`Pursuant to CAA Section 111(b)(1)(B), 42 U.S.C. § 7411(b)(1)(B), EPA
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`promulgated regulations that contain general provisions applicable to all NSPS source categories.
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`See 40 C.F.R. Part 60, Subpart A, §§ 60.1- 60.19 (NSPS Subpart A).
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`58.
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`Under NSPS Subpart A, the provisions of Part 60 “apply to the owner or operator
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`of any stationary source which contains an affected facility, the construction or modification of
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`which is commenced after the publication [in Part 60] of any standard (or, if earlier, the date of
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`publication of any proposed standard) applicable to that facility.” 40 C.F.R. § 60.1.
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`59.
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`Affected facility is defined in the CAA as “any apparatus to which a standard is
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`applicable.” 40 C.F.R. § 60.2.
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`3. NSPS Part 60, Subpart A: Good Air Pollution Control Practices
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`60. Within NSPS Subpart A, EPA promulgated a regulation that applies at all times to
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`all affected facilities, including associated air pollution control equipment. Specifically, “at all
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`times, including periods of startup, shutdown, and malfunction, owners and operators shall, to
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`the extent practicable, maintain and operate any affected facility including associated air
`
`pollution control equipment in a manner consistent with good air pollution control practice for
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`minimizing emissions.” 40 C.F.R. § 60.11(d).
`
`
`
`4. NSPS Subpart A: Requirements for Flares Used as Control Devices
`
`61.
`
`NSPS Subpart A contains specific regulations that apply to flares that are used as
`
`control devices for facilities subject to an NSPS. 40 C.F.R. §§ 60.18(b)-(f).
`
`62.
`
`Among other things, NSPS Subpart A requires that flares must be: a) designed
`
`and operated with no visible emissions (40 C.F.R. § 60.18(c)(1)), b) operated with a flame
`
`present at all times (40 C.F.R. § 60.18(c)(2)), c) monitored to ensure that they are operated and
`
`maintained in conformance with their design (40 C.F.R. § 60.18(d)), and d) operated at all times
`
`when emissions are vented to them (40 C.F.R. § 60.18(e)).
`
`63.
`
`Of relevance to this Complaint are the following requirements: for steam-assisted
`
`flares, the net heating value (NHV) of the gas being combusted in the flare must be 300 British
`
`Thermal Units (BTU) per standard cubic foot (scf) or greater (40 C.F.R. § 60.18(c)(3)(ii)); for
`
`steam-assisted flares, certain exit velocity requirements must be met, 40 C.F.R. § 60.18(c)(4);
`
`and for all flares, the owner or operator must monitor the flare to ensure that it is operated and
`
`maintained in conformance with its design, 40 C.F.R. § 60.18(d).
`
`
`
`
`
`5. Specific NSPS Categorical Standards
`
`64.
`
`Pursuant to CAA Section 111(b)(1)(A) of the CAA, 42 U.S.C. § 7411(b)(1)(A),
`
`EPA has promulgated NSPS for the following categories of stationary sources, among others:
`
`SOURCE CATEGORY
`
`Standards of Performance for Volatile
`Organic Liquid Storage Vessels (Including
`Petroleum Liquid Storage Vessels) for Which
`Construction, Reconstruction, or Modification
`Commenced After July 23, 1984
`
`NSPS REGULATION
`(40 C.F.R. Part 60)
`
`Subpart Kb - 40 C.F.R. §§ 60.110b-60.117b
`
`
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`Standards of Performance for Equipment
`Leaks of VOC in the Synthetic Organic
`Chemicals Manufacturing Industry (between
`Jan. 5, 1981 and Nov. 7, 2006).
`
`Standards of Performance for VOC Emissions
`from the Polymer Manufacturing Industry
`Standards of Performance for VOC Emissions
`from Synthetic Organic Chemicals
`Manufacturing Industry Distillation
`Operations.
`Standards of Performance for VOC Emissions
`from Synthetic Organic Manufacturing
`Industry (SOCMI) Reactor Processes.
`
`65.
`
`Subpart VV - 40 C.F.R. §§ 60.480-60.489
`
`Subpart DDD - 40 C.F.R. §§ 60.560-60.566
`
`Subpart NNN - 40 C.F.R. §§ 60.660-60.668
`
`Subpart RRR - 40 C.F.R. §§ 60.700-60.708
`
`Flares used as a control device for affected facilities subject to 40 C.F.R. Part 60,
`
`Subparts Kb, VV, DDD, NNN, or RRR must comply with the requirements of NSPS Subpart A,
`
`including 40 C.F.R. §§ 60.11(d) and 60.18.
`
`66.
`
`Part 60, Subparts Kb, VV, DDD, NNN, and RRR explicitly require that flares
`
`used as a control device for affected facilities subject to those subparts must comply with the
`
`requirements of 40 C.F.R. 60.18. See 40 C.F.R. § 60.112b(3)(i); 40 C.F.R. 60.482-10a(d); 40
`
`C.F.R. §§ 60.562-1(a)(1)(i)(C) and (ii) and 60.562-2; 40 C.F.R. § 60.662(b), and 40 C.F.R.
`
`§ 60.702(b).
`
`67.
`
`Part 60, Subparts VV and DDD explicitly require that flares used as a control
`
`devices for affected facilities subject to this subpart must be monitored to ensure that they are
`
`operated and maintained in conformance with their design. See 40 C.F.R. 60.482-10(e) and 40
`
`C.F.R. § 60.563(c).
`
`C. National Emissions Standards for HAPs
`
`
`
`1. General: Section 112 prior to the 1990 CAA Amendments
`
`68.
`
`CAA Section 112 sets forth a national program for the control of hazardous air
`
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`Case 2:21-cv-00114-MLCF-JVM Document 1 Filed 01/19/21 Page 15 of 47
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`pollutants (HAPs). See 42 U.S.C. § 7412 and 40 C.F.R. § 61.01(a). These requirements are
`
`known as “national emissions standards for hazardous air pollutants” (NESHAPs). NESHAPs
`
`established before the Clean Air Act was amended in 1990 are promulgated at 40 C.F.R. Part 61.
`
`
`
`
`
`2. Part 61, Subpart A: NESHAP General Standards
`
`69.
`
`Pursuant to CAA Section 112, 42 U.S.C. § 7412, before it was amended on
`
`November 15, 1990 (the 1990 Amendments), EPA promulgated general regulations that apply to
`
`all stationary sources of HAPs that are subject to the NESHAPs, regardless of their source
`
`category. See 40 C.F.R. § 61.01(c). These general NESHAP standards are found at 40 C.F.R.
`
`Part 61, Subpart A, §§ 61.01-61.19 (NESHAP Subpart A).
`
`70.
`
`Like NSPS Subpart A, NESHAP Subpart A requires that “the owner and operator
`
`of each stationary source [of HAPs] shall maintain and operate the source, including associated
`
`equipment for air pollution control, in a manner consistent with good air pollution control
`
`practices for minimizing emissions.” 40 C.F.R. § 61.12(c).
`
`
`
`
`
`3. Specific Categorical NESHAPs
`
`71.
`
`Pursuant to CAA Section 112, as it existed before the 1990 Amendments, EPA
`
`promulgated NESHAPs for the following categories of stationary sources of HAPs:
`
`SOURCE CATEGORY
`
`NESHAP
`(40 C.F.R. Part 61)
`
`Subpart FF - 40 C.F.R. §§ 61.340-61.358
`
`National Emission Standard for Benzene
`Waste Operations
`
`72.
`
`Flares used as a control device for sources subject to 40 C.F.R. Part 61, Subpart
`
`FF must comply with the requirements of 40 C.F.R. § 60.18. 40 C.F.R. § 61.349(a)(2)(iii) and
`
`(d).
`
`
`
`73.
`
`Flares used as a control device for sources subject to Part 61, Subpart FF must
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`comply with the requirement that each flare be maintained and operated “in a manner consistent
`
`with good air pollution control practice for minimizing emissions.” 40 C.F.R. § 61.12(c).
`
`
`
`
`
`4. General: Section 112 after the 1990 CAA Amendments
`
`74.
`
`In 1990, Congress amended the then-existing Section 112 and established a new
`
`program for the control of HAPs. See H.R. Rep. No. 101-490, 101st Cong., 2d Sess., part 1 at
`
`324 (1990). The 1990 CAA Amendments did not alter the pre-1990 NESHAPs, and those
`
`regulations remain in effect unless specifically amended by a later regulation. See 40 C.F.R.
`
`§ 63.1(a)(2).
`
`75. With the 1990 Amendments, Congress itself established a list of 188 HAPs
`
`believed to cause adverse health or environmental effects. See 42 U.S.C. § 7412(b)(1).
`
`76.
`
`Congress directed EPA to publish a list of all categories and subcategories of,
`
`inter alia, major sources of HAPs. 42 U.S.C. § 7412(c).
`
`77. Major source is defined as any stationary source or group of stationary sources
`
`located within a contiguous area and under common control that, in the aggregate, emits or has
`
`the potential to emit, considering controls, in the aggregate, 10 TPY or more of any HAP or 25
`
`TPY or more of any combination of HAPs. 42 U.S.C. § 7412(a)(1).
`
`78.
`
`Stationary source is defined in the same way as the term is defined under the
`
`NSPS. 42 U.S.C. §§ 7412(a)(3) and 7411(a)(3).
`
`79.
`
`A category of sources is a group of sources having some common features
`
`signifying that they should be regulated in the same way and on the same schedule. 57 Fed. Reg.
`
`31,576-578 (July 16, 1992). A single stationary source can include multiple source categories. Id.
`
`80.
`
`Congress directed EPA to promulgate regulations establishing emission standards
`
`for each category of, inter alia, major sources of HAPs. 42 U.S.C. § 7412(d)(1). These emission
`
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`standards must require the maximum degree of reduction in emissions of HAPs that EPA, taking
`
`into consideration the cost of achieving such emission reduction, and any non-air quality health
`
`and environmental impacts and energy requirements, determines is achievable for the new or
`
`existing sources in the category or subcategory to which the emission standard applies. See 42
`
`U.S.C. § 7412(d)(2).
`
`81.
`
`To the extent that it is not feasible to prescribe or enforce an emission standard for
`
`the control of a HAP, Congress authorized EPA to promulgate “design, equipment, work
`
`practice, or operational” standards, which are to be treated as emission standards. 42 U.S.C.
`
`§ 7412(h).
`
`82.
`
`The emission standards promulgated under CAA Section 112, 42 U.S.C. § 7412,
`
`as amended, are known as the NESHAPs for Source Categories. They are commonly referred to
`
`as maximum achievable control technology (MACT) standards. The MACT regulations are
`
`found at 40 C.F.R. Part 63.
`
`83.
`
`After the effective date of any emission standard, limitation, or regulation
`
`promulgated pursuant to CAA Section 112, as amended, no person may operate a source in
`
`violation of such standard, limitation, or regulation. 42 U.S.C. § 7412(i)(3).
`
`
`
`
`
`5. Part 63, Subpart A: General Standards
`
`84.
`
`Pursuant to CAA Section 112, 42 U.S.C. § 7412, as amended, EPA promulgated
`
`regulations that apply to stationary sources of HAPs that are subject to the MACT standards,
`
`regardless of their source category. See 40 C.F.R. §§ 63.1(b) and (c). These general standards are
`
`found at 40 C.F.R. §§ 63.1-63.16 (MACT Subpart A).
`
`85.
`
`Under MACT Subpart A, the provisions of 40 C.F.R. Part 63 “apply to the owner
`
`or operator of any stationary source that (i) emits or has the potential to emit any HAP listed in
`
`
`
`17