Case: 3:20-cv-00950-jdp Document #: 1 Filed: 10/15/20 Page 1 of 27
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`THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WISCONSIN
`
`________________________________________
`)
`
`)
`UNITED STATES OF AMERICA
`)
`
`)
` Plaintiff,
`)
`
`)
` v.
`)
`
`)
`HYDRITE CHEMICAL CO.
`)
`
`)
` Defendant.
`)
`________________________________________)
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`
`
`
`
`Case No. 3:20-cv-00950
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`COMPLAINT
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`
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`Plaintiff, the United States of America, by authority of the Attorney General of the
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`United States and through the undersigned Attorneys, acting at the request of the Administrator
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`of the United States Environmental Protection Agency (“EPA”), files this Complaint and alleges
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`as follows:
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`
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought by the United States against Defendant Hydrite
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`Chemical Co. (“Hydrite”) for injunctive relief and the assessment of civil penalties for violations
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`of Section 113 of the Clean Air Act (the “CAA”), 42 U.S.C. § 7413, at Hydrite’s chemical
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`blending and manufacturing facility located at 114 North Main Street, Cottage Grove, Wisconsin
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`(the “Facility”). Hydrite has violated regulatory requirements imposed by National Emission
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`Standards for Hazardous Air Pollutants (“NESHAP”) promulgated pursuant to CAA Section
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`112, 42 U.S.C. § 7412, as well as requirements imposed by permits for the Facility issued
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`pursuant to the federally enforceable CAA State Implementation Plan (the “Wisconsin SIP”) and
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`the CAA Title V permit program adopted by the State of Wisconsin and approved by EPA
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`pursuant to CAA Sections 110 and 501-507, 42 U.S.C. §§ 7410 and 7661-7661f.
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`JURISDICTION AND VENUE
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`2.
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`The Court has jurisdiction over the subject matter of this civil action pursuant to
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`CAA Section 113, 42 U.S.C. § 7413, and 28 U.S.C. §§ 1331, 1345, and 1355.
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`3.
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`Venue is proper in this district pursuant to CAA Section 113, 42 U.S.C.
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`§ 7413(b), and 28 U.S.C. §§ 1391(b), (c), and 1395(a), because the violations of the CAA giving
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`rise to this complaint occurred and are occurring at Hydrite’s Facility in this district.
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`
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`4.
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`In accordance with CAA Section 113(a)(1), 42 U.S.C. § 7413(a)(1), EPA issued
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`NOTICE
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`Hydrite a Notice and Finding of Violation on June 30, 2017 (the “Violation Notice”), and
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`simultaneously sent a copy of the Violation Notice to the Wisconsin Department of Natural
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`Resources. The Violation Notice alleged violations of several NESHAPs, CAA permits, and the
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`Wisconsin SIP at the Facility.
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`5.
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`The United States has provided notice of the commencement of this action to the
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`State of Wisconsin pursuant to CAA Section 113(b), 42 U.S.C. § 7413(b).
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`THE DEFENDANT
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`Hydrite owns and operates a chemical blending and manufacturing facility located
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`6.
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`at 114 North Main Street, Cottage Grove, Wisconsin.
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`7.
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`The Facility is also a Resource Conservation and Recovery Act (“RCRA”)
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`licensed treatment, storage, and disposal facility that manages and processes hazardous waste
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`material that is generated off-site, such as spent solvents provided by other companies.
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`8.
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`Hydrite’s operations at the Facility result in the emission of air pollutants that are
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`regulated under the CAA, including volatile organic compounds (“VOCs”) and hazardous air
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`pollutants (“HAPs”).
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`9.
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`Hydrite is a corporation formed under the laws of the State of Wisconsin and does
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`business in Wisconsin.
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`10.
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`Hydrite is a “person” as defined in CAA Sections 113(b) and 302(e), 42 U.S.C.
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`§§ 7613(b) and 7602(e).
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`11.
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`The Facility is a “stationary source” as defined in CAA Sections 113(b) and
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`302(z), 42 U.S.C. §§ 7613(b) and 7602(z).
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`12.
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`Hydrite is an “owner or operator” of the Facility within the meaning of CAA
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`Section 113(b), 42 U.S.C. §§ 7613(b).
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`
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`
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`STATUTORY AND REGULATORY BACKGROUND
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`National Emission Standards for Hazardous Air Pollutants
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`1.
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`General
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`CAA Section 112 sets forth a national program for the control of HAPs.
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`13.
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`42 U.S.C. § 7412. As originally promulgated in the Clean Air Act Amendments of 1970,
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`Section 112 directed EPA to publish a list of HAPs. A HAP was defined as “an air pollutant to
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`which no ambient air quality standard is applicable and which in the judgment of the
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`Administrator may cause, or contribute to, an increase in mortality or an increase in serious
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`irreversible, or incapacitating reversible, illness.” 42 U.S.C. § 1857c-7 (1971). At that time,
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`Congress directed EPA to establish HAP standards that provided “an ample margin of safety to
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`protect the public health from such hazardous air pollutant.” Id.
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`14.
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`Between 1970 and 1990, EPA listed eight substances as hazardous air pollutants
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`and promulgated emission standards for seven of them. H.R. Rep. No. 101-490, 101st Cong., 2d
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`Sess., pt 1 at 151 (1990). Of relevance to this action, EPA issued standards relating to volatile
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`hazardous air pollutants from equipment leaks, found in Title 40 of the Code of Federal
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`Regulations, Part 61, Subpart V. 40 C.F.R. §§ 61.240–61.247.
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`15.
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`Through the Clean Air Act Amendments of 1990, Congress replaced the
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`then-existing Section 112 and established a new program for the control of HAPs. H.R. Rep.
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`No. 101-490, 101st Cong., 2d Sess., pt 1 at 324 (1990). The regulations then in existence under
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`the original Section 112 remained in full force and effect.
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`16. With the 1990 amendments, Congress itself established a list of 189 hazardous air
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`pollutants believed to cause adverse health or environmental effects. 42 U.S.C. § 7412(b)(1).
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`17.
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`Congress directed EPA to publish a list of all categories and subcategories of,
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`inter alia, major sources of HAPs. 42 U.S.C. § 7412(c).
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`18.
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`A “major source” of HAPs was and is defined as any stationary source or group
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`of stationary sources located within a contiguous area and under common control that emits or
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`has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any
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`HAP or 25 tons per year or more of any combination of HAPs. 42 U.S.C. § 7412(a)(1).
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`19.
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`A “stationary source” was and is defined as any building, structure, facility, or
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`installation which emits or may emit any air pollutant. 42 U.S.C. § 7412(a)(3) (stating that
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`“stationary source” under Section 112(a) has the same meaning as that term has under
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`Section 111(a) of the CAA, 42 U.S.C. § 7411(a)(3)).
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`20.
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`A “category” of sources is a group of sources having some common features
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`suggesting that they should be regulated in the same way and on the same schedule. 57 Fed.
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`Reg. 31576, 31578 (July 16, 1992). A single stationary source can be comprised of multiple
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`source categories. Id.
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`21.
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`Congress directed EPA to promulgate regulations establishing emission standards
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`for each category or subcategory of, inter alia, major sources of HAPs. 42 U.S.C. § 7412(d)(1).
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`These emission standards must require the maximum degree of reduction in emissions of HAPs
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`that the Administrator, taking into consideration the cost of achieving such emission reduction,
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`and any non-air quality health and environmental impacts and energy requirements, determines
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`is achievable for the new or existing sources in the category or subcategory to which the
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`emission standard applies. 42 U.S.C. § 7412(d)(2).
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`22.
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`To the extent that it is not feasible to prescribe or enforce an emission standard for
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`control of a HAP, Congress authorized EPA to promulgate “design, equipment, work practice, or
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`operational” standards, which are to be treated as emission standards. 42 U.S.C. § 7412(h).
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`23.
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`The emission standards promulgated under the 1990 Amendments to CAA
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`Section 112, 42 U.S.C. § 7412, are known as the “NESHAPs” (“National Emission Standards for
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`Hazardous Air Pollutants”) for Source Categories or “MACT” (“maximum achievable control
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`technology”) standards. These emission standards are found in Part 63 of Title 40 of the Code of
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`Federal Regulations.
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`24.
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`After the effective date of any emission standard, limitation, or regulation
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`promulgated pursuant to CAA Section 112, no person may operate a source in violation of such
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`standard, limitation, or regulation. 42 U.S.C. § 7412(i)(3).
`
`2.
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`MACT General Provisions – 40 C.F.R. Part 63, Subpart A
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`25.
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`Pursuant to CAA Section 112, 42 U.S.C. § 7412, EPA has promulgated
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`regulations that contain general provisions applicable to sources that are subject to MACT
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`standards. 40 C.F.R. Part 63, Subpart A, §§ 63.1–63.16 (“Subpart A”).
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`26.
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`Under Subpart A, the provisions of 40 C.F.R. Part 63 “apply to the owner or
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`operator of any stationary source that (i) emits or has the potential to emit any hazardous air
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`pollutant listed in or pursuant to section 112(b) of the Act; and (ii) is subject to any standard,
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`limitation, prohibition, or other federally enforceable requirement established pursuant to this
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`part.” 40 C.F.R. § 63.1(b)(1).
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`27.
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`Subpart A defines the term “fugitive emissions” as “those emissions from a
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`stationary source that could not reasonably pass through a stack, chimney, vent, or other
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`functionally equivalent opening.” Subpart A also specifies that “[u]nder section 112 of the Act,
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`all fugitive emissions are to be considered in determining whether a stationary source is a major
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`source.” 40 C.F.R. § 63.2.
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`3.
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`
`
`
`
`
`
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`The Off-Site Waste and Recovery Operations NESHAP – 40 C.F.R. Part
`63, Subpart DD
`
`a.
`
`General
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`28.
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`Pursuant to CAA Section 112(c), 42 U.S.C. § 7412(c), EPA identified off-site
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`waste and recovery operations as a category of sources of HAPs. 57 Fed. Reg. 31,591 (Table 1)
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`(July 16, 1992) (identifying the category as “Solid Waste Treatment, Storage, and Disposal
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`Facilities (TSDF)”); 59 Fed. Reg. 51,918 (Oct. 13, 1994) (changing the name of the category to
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`“Off-Site Waste and Recovery Operations”).
`
`29.
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`Pursuant to CAA Section 112(d), 42 U.S.C. § 7412(d), EPA promulgated the
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`NESHAP for Off-Site Waste and Recovery Operations at 40 C.F.R. Part 63, Subpart DD.
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`40 C.F.R. §§ 63.680 – 63.697. These regulations are commonly referred to as the “OSWRO
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`MACT” or “Subpart DD.”
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`30.
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`Subpart DD applies to the owner and/or operator of a plant that is a major source
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`of HAPs when the plant is the location of a waste management operation that receives off-site
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`material and the operation is regulated as a hazardous waste treatment, storage, and disposal
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`facility under either 40 C.F.R. Part 264 or 265. 40 C.F.R. § 63.680(a)(1), (2).
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`31.
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`A “waste management operation” is the collection of off-site material
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`management units, process vents, and equipment components used at a plant site to manage an
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`off-site material stream from the point-of-delivery to the point where the waste exits or is
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`discharged from the plant site or the waste is placed for on-site disposal in a unit not subject to
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`Subpart DD. 40 C.F.R. § 63.681.
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`32.
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`The “affected source” to which Subpart DD applies is, inter alia: (i) equipment
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`leaks, id. § 63.680(c)(3); and (ii) the entire group of off-site material management units
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`associated with the operation, which units include tanks, id. § 63.680(c)(1).
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`33.
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`Equipment means a pump, compressor, agitator, pressure relief device, sampling
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`connection system, open-ended valve or line, valve, connector, or instrumentation system that
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`contains or contacts off-site material having a total HAP concentration equal to or greater than
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`10 percent by weight and is intended to operate for 300 hours or more during a calendar year in
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`off-site material service. Id. § 63.680(c)(3)(i)–(iii).
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`34.
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`A tank is a stationary unit that is constructed primarily of nonearthen materials
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`(such as wood, concrete, steel, fiberglass, or plastic) which provide structural support and is
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`designed to hold an accumulation of liquids or other materials. Id. § 63.681.
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`35.
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`Subpart DD establishes general standards for owners and operators of affected
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`sources, id. § 63.683, as well as specific standards for several sources of potential emissions
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`from those operations, including equipment leaks, id. § 63.691, and tanks, id. § 63.685.
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`b.
`
`The Equipment Leak Standards of Subpart DD
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`36.
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`Owners and operators of equipment subject to Subpart DD must implement the
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`leak detection and repair (“LDAR”) control measures found in Subpart DD at 40 C.F.R.
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`§ 63.691. Id. § 63.683(d).
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`37.
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`Under 40 C.F.R. § 63.691, owners and operators of equipment subject to leaks
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`may choose among two options for compliance. Id. § 63.691(b). They may comply with the
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`equipment leak standards of either 40 C.F.R. Part 63, Subpart H (40 C.F.R. §§ 63.162–63.182) or
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`Part 61, Subpart V (40 C.F.R. §§ 61.242–61.247). For purposes of the claims in this Complaint,
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`the relevant requirements of each of these Subparts are the same.
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`38.
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`Except during pressure releases, the owner or operator of each pressure relief
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`device in gas/vapor service must operate the device with an instrument reading of less than 500
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`parts per million (“ppm”) VOCs above background. 40 C.F.R. § 63.165(a) (Subpart H); id.
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`§ 61.242-4(a) (Subpart V). These requirements apply to pressure release devices on tanks
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`subject to Subpart DD, as well as pressure relief devices on other types of equipment covered by
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`Subpart DD.
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`39.
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`The method for measuring emissions of VOCs from a pressure relief device is
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`Method 21, found in 40 C.F.R. Part 60, Appendix A. 40 C.F.R. § 63.180(c)(1) (Subpart H); id.
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`§ 61.245(c)(1) (Subpart V).
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`40. Method 21, at 40 C.F.R. Part 60, Appendix A-7, Meth.21, Section 8.3.1, requires
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`the owner or operator of an affected source to do as follows:
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`Place the probe inlet [of the portable instrument that is capable of detecting
`emissions from equipment] at the surface of the component interface where
`leakage could occur. Move the probe along the interface periphery while
`observing the instrument readout. If an increased meter reading is observed,
`slowly sample the interface where leakage is indicated until the maximum meter
`reading is obtained. Leave the probe inlet at this maximum reading location for
`approximately two times the instrument response time. If the maximum observed
`meter reading is greater than the leak definition in the applicable regulation,
`record and report the results [as a leaking component].
`
`
`c.
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`The Tank Standards of Subpart DD
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`41.
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`Owners and operators of tanks subject to Subpart DD may choose among three
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`options for compliance. 40 C.F.R. § 63.683(b)(1). Of relevance to this Complaint, one of the
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`compliance options is compliance with the specific standards for tanks found in Subpart DD at
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`40 C.F.R. § 63.685. Id. § 63.683(b)(1)(i).
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`42.
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`The Subpart DD emission control requirements for tanks depend in part on
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`whether the tanks are required to use “Level 1” or “Level 2” controls. Of relevance to this
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`Complaint, the Level 1 control options include: (i) equipping the tank with a fixed roof and
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`closure devices that form a continuous barrier over the entire surface area of the liquid in the
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`tank; and (ii) equipping the tank with a fixed roof, closure devices, and a closed-vent system that
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`vents tank emissions to a control device such as a thermal oxidizer. 40 C.F.R. §§ 63.685(c),
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`63.902(b).
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`43.
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`A transfer system associated with a Subpart DD-regulated tank also must be
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`equipped with emission controls under Subpart DD, such as a cover, closure devices, and a
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`closed-vent system that vents vapors to a control device. 40 C.F.R. § 63.689.
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`44.
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`Except in limited circumstances, closure devices on Subpart DD-regulated tanks
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`must be secured in a closed position. 40 C.F.R. §§ 63.685(g)(2), 63.902(c).
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`45.
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`Subpart DD imposes special design and operation requirements, as well as
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`inspection and monitoring requirements, for closed-vents systems and control devices that
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`receive vented emissions from regulated tanks and transfer systems. 40 C.F.R. §§ 63.685(g),
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`63.689(c)(3), 63.693, 63.695. Among other requirements, Subpart DD specifies that closed-vent
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`system components and connections must be monitored in accordance with Method 21 to
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`demonstrate that the system operates with no detectable organic emissions. 40 C.F.R.
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`§§ 63.693(c), 63.694(k), 63.695(c).
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`4.
`
`The Organic Liquids Distribution NESHAP – 40 C.F.R. Part 63,
`Subpart EEEE
`
`
`
`
`Pursuant to CAA Section 112(d), 42 U.S.C. § 7412(d), EPA promulgated the
`
`46.
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`National Emission Standards for Hazardous Air Pollutants for Organic Liquids Distribution
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`(Non-Gasoline) at 40 C.F.R. Part 63, Subpart EEEE. 40 C.F.R. §§ 63.2330 – 63.2406. These
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`regulations are commonly referred to as the “OLD MACT” or “Subpart EEEE.”
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`47.
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`40 C.F.R. § 63.2334 states that owners and operators of an organic liquids
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`distribution operation that is located at, or is part of, a major source of HAPs, is subject to the
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`requirements of Subpart EEEE, with certain exceptions not relevant here. 40 C.F.R.
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`§ 63.2338(a) further states that Subpart EEEE is applicable to new, reconstructed, or existing
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`organic liquids distribution operations.
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`48.
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`Subpart EEEE establishes emission standards, recordkeeping requirements, and
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`requirements to demonstrate initial and continuous compliance with emission limits, operating
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`limits, and work practice standards for covered organic liquids distribution operations.
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`5.
`
`The Miscellaneous Organic Chemical Manufacturing NESHAP –
`40 C.F.R. Part 63, Subpart FFFF
`
`
`
`
`Pursuant to CAA Section 112(c), 42 U.S.C. § 7412(c), EPA identified several
`
`49.
`
`organic chemical manufacturing processes as a category of sources of HAPs. 57 Fed. Reg.
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`31,576, 31,591 (Table 1) (July 16, 1992). Several of these source categories were combined into
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`one broad source category called Miscellaneous Organic Chemical Manufacturing.
`
`50.
`
`Pursuant to CAA Section 112(d), 42 U.S.C. § 7412(d), EPA regulated this source
`
`category under what it called the National Emission Standards for Organic Hazardous Air
`
`Pollutants from Miscellaneous Organic Chemical Manufacturing, found at 40 C.F.R. Part 63,
`
`Subpart FFFF. 40 C.F.R. §§ 63.2430-63.2550. These provisions commonly are referred to as
`
`the “Miscellaneous Organic NESHAP,” the “MON,” or “Subpart FFFF.”
`
`51.
`
`The “affected source” to which standards of Subpart FFFF apply is the
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`facility-wide collection of miscellaneous organic chemical processes units (“MCPUs”) and heat
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`exchange systems, wastewater, and waste management units that are associated with
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`manufacturing materials described in 40 C.F.R. § 63.2435(b)(1). 40 C.F.R. § 63.2440(b).
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`52.
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`“Miscellaneous organic chemical manufacturing process” means all equipment
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`which collectively function to produce a product or isolated intermediate that is specifically
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`described in 40 C.F.R. § 63.2435(b). 40 C.F.R. § 63.2550.
`
`53.
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`“Miscellaneous organic chemical manufacturing process unit” means the process
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`equipment and any assigned storage tanks, product transfer racks, equipment in open systems
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`that is used to convey or store water having the same concentration and flow characteristics as
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`wastewater, and components such as pumps, compressors, agitators, pressure relief devices,
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`sampling connection systems, open-ended valves or lines, valves, connectors, and
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`instrumentation systems that are used to manufacture any material or family of material
`
`described in 40 C.F.R. § 63.2435(b)(1).
`
`54.
`
`Subpart FFFF applies to any MCPU that is located at a major source; produces
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`material or a family of materials described in 40 C.F.R. § 63.2435(b)(1)(i)-(v); processes, uses or
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`produces any of the organic HAPs listed in Section 112(b) of the CAA, 42 U.S.C. § 7412(b); and
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`is not an affected source or part of any affected source under another Subpart of Part 63 (with
`
`certain exceptions not relevant here). 40 C.F.R. § 63.2435(b)(1).
`
`55.
`
`Under Subpart FFFF, affected sources that existed prior to November 10, 2003,
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`were required to be in compliance with Subpart FFFF by no later than May 10, 2008. 40 C.F.R.
`
`63.2445(b).
`
`56.
`
`Subpart FFFF establishes emission standards, recordkeeping requirements, and
`
`requirements to demonstrate initial and continuous compliance with emission limits, operating
`
`limits, and work practice standards for covered MPCUs, wastewater treatment and conveyance
`
`systems, transfer operations, and associated ancillary equipment.
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`6.
`
`Violation of the NESHAPs
`
`57.
`
`After the effective date of any emission standard, limitation, or regulation
`
`promulgated pursuant to CAA Section 112, no person may operate such source in violation of
`
`such standard, limitation, or regulation. 42 U.S.C. § 7412(i)(3).
`
`The National Ambient Air Quality Standards and the Wisconsin SIP
`58.
`CAA Section 108(a), 42 U.S.C. § 7408(a), requires EPA to list, and issue air
`
`quality criteria for, each air pollutant, the emissions of which may endanger public health or
`
`welfare and the presence of which results from numerous or diverse mobile or stationary sources.
`
`59.
`
`An “air pollutant” means “any air pollution agent or combination of such agents,
`
`including any physical, chemical, biological, radioactive…substance or matter which is emitted
`
`into or otherwise enters the ambient air.” This also includes any precursors to the formation of
`
`any air pollutant. CAA Section 302(g), 42 U.S.C. § 7602(g).
`
`60.
`
`VOCs are a precursor to the formation of ground-level ozone, one of the six
`
`designated criteria air pollutants.
`
`61.
`
`CAA Section 109, 42 U.S.C. § 7409, requires EPA to promulgate regulations
`
`establishing primary and secondary national ambient air quality standards (“NAAQS” or
`
`“ambient air quality standards”) for those air pollutants for which air quality criteria have been
`
`issued pursuant to CAA Section 108, 42 U.S.C. § 7408 (“criteria pollutants”). Under CAA
`
`Section 109(b), 42 U.S.C. § 7409(b), the primary NAAQS are to be adequate to protect the
`
`public health with a sufficient margin of safety, and the secondary NAAQS are to be adequate to
`
`protect the public welfare from any known or anticipated adverse effects associated with the
`
`presence of the air pollutant in the ambient air.
`
`62.
`
`Pursuant to CAA Sections 108 and 109, 42 U.S.C §§ 7408 and 7409, EPA has
`
`established NAAQS for VOCs, which are codified as part of 40 C.F.R. Part 50.
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`63.
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`Under 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 where the air quality is better or worse than the
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`NAAQS for each criteria pollutant, or where the air quality cannot be classified due to
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`insufficient data. An area that meets the NAAQS for a particular pollutant is an “attainment”
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`area. An area that does not meet the NAAQS is a “nonattainment” area. An area that cannot be
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`classified due to insufficient data is “unclassifiable.”
`
`64.
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`At all times relevant to this Complaint, Hydrite’s Facility has been located in an
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`area that has been designated as attainment for VOCs.
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`65.
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`Pursuant to CAA Section 110, 42 U.S.C. § 7410, each state must adopt and
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`submit to EPA for approval a State Implementation Plan that provides for the attainment and
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`maintenance of the NAAQS, and that meets other requirements of the CAA.
`
`66.
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`Once EPA approves a SIP, the SIP also is independently enforceable by the
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`federal government under Section 113 of the CAA, 42 U.S.C. § 7413.
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`67.
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`CAA Section 110(a)(2)(C), 42 U.S.C. § 7410(a)(2)(C), requires each SIP to
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`include “regulation of the modification and construction of any stationary source within the areas
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`covered by the plan as necessary to assure that national ambient air quality standards are
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`achieved, including a permit program. . . .”
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`68.
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`In 1995, EPA approved Wis. Admin. Code Chapter NR 406 as part of the
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`federally enforceable SIP for Wisconsin. The approved provisions implemented the construction
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`permit program in the State of Wisconsin. 40 C.F.R. § 52.2570(c)(75), 60 Fed. Reg. 3,538 (Jan.
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`18, 1995).
`
`69.
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`In 1995, EPA also approved Wis. Admin. Code Chapter NR 407 as part of the
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`federally enforceable SIP for Wisconsin. The approved provisions implemented the operating
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`permit program in the State of Wisconsin. 40 C.F.R. § 52. 2570(c)(76), 60 Fed. Reg. 3,538 (Jan.
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`18, 1995).
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`70.
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`In 2008, EPA approved revisions to the Wisconsin SIP that provide various
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`Wisconsin construction permit rules for stationary sources. 73 Fed. Reg. 12,893 (Mar. 11,
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`2008).
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`71.
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`A violation of SIP requirements, including requirements of permits issued in
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`accordance with a SIP, is a violation of CAA Section 110, 42 U.S.C. § 7410, and is federally
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`enforceable under CAA Section 113(a)(1), 42 U.S.C. § 7413(a)(1).
`
`
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`Title V
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`72.
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`CAA Title V, 42 U.S.C. § 7661-7661f, establishes an operating permit program
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`for certain sources of air pollution, including “major sources.” The purpose of Title V is to
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`ensure that all “applicable requirements” for compliance with the CAA, including SIP
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`requirements, are collected in one permit. 42 U.S.C. § 7661c(a).
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`73.
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`Pursuant to CAA Section 502(b), 42 U.S.C. § 7661a(b), EPA promulgated
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`regulations implementing the requirements of Title V and establishing the minimum elements of
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`a Title V permit program to be administered by any state or local air pollution control agency.
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`57 Fed. Reg. 32,250 (July 21, 1992). EPA’s regulations implementing CAA Title V are codified
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`at 40 C.F.R. Part 70. In Wisconsin, a source that is required to have a Title V permit is
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`sometimes referred to as a “Part 70 Source.”
`
`74.
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`Under Title V, a “major source” is defined to include, among other things, a
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`“major stationary source” as defined in 42 U.S.C. § 7602. The term “major stationary source” is
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`defined at 42 U.S.C. § 7602 to mean, in pertinent part, “any stationary facility or source of air
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`pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of
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`any air pollutant[.]”
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`Under Title V, “potential to emit” is defined as:
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`75.
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`“[t]he maximum capacity of a stationary source to emit any air pollutant under its
`physical and operational design. Any physical or operational limitation on the
`capacity of a source to emit an air pollutant, including air pollution control
`equipment and restriction on hour of operation or on the type or amount of
`material combusted, stored, or processed, shall be treated as part of its design if
`the limitation is enforceable by the Administrator.”
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`40 C.F.R. § 70.2.
`
`76.
`
`Pursuant to CAA Section 502(a) of the CAA, 42 U.S.C. § 7661a(a), and the
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`implementing regulations at 40 C.F.R. § 70.7(b), after the effective date of any permit program
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`approved or promulgated under Title V of the CAA, no person may operate a major source
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`except in compliance with a Title V permit.
`
`77.
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`EPA granted final approval of Wisconsin’s CAA Title V Permit Program,
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`effective November 30, 2001. 66 Fed. Reg. 62,951 (Dec. 4, 2001); 40 C.F.R. Part 70, Appendix
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`A. On February 28, 2006, EPA granted Wisconsin final approval on revisions to its CAA Title
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`V Permit Program, effective March 30, 2006. 71 Fed. Reg. 9,934 (Feb. 28, 2006).
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`78.
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`The Wisconsin SIP provisions encompassing its CAA Title V Permit Program are
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`found at Wis. Admin. Code Chapter NR 407, which specifies operating permit requirements for
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`stationary sources of air contaminants.
`
`79.
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`Any noncompliance with a Wisconsin operating permit issued pursuant to the SIP
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`constitutes a violation of the Wisconsin SIP and is grounds for enforcement action; permit
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`suspension; revocation or revision; or denial of a permit renewal application. Wis. Admin. Code
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`§ NR 407.09(1)(f)(1).
`
`80.
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`Terms and conditions of a Title V permit are federally enforceable, except as
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`specified in the permit. 42 U.S.C. § 7413(b); 40 C.F.R. § 70.6(b).  In Wisconsin, Title V permits
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`typically state: “Conditions of the permit marked with an asterisk (*) have been created outside
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`of Wisconsin’s federally approved State Implementation Plan (SIP) and are not federally
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`enforceable.”
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`Hydrite’s Clean Air Act Permits
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`81.
`
`Hydrite has obtained various Clean Air Act construction permits pursuant to the
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`Wisconsin SIP that impose federally enforceable emission limitations and other conditions for air
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`pollutant emission sources at the Facility.
`
`82.
`
`Hydrite also has obtained a Clean Air Act operating permit for the Facility – as
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`well as periodic renewals and modifications to that operating permit – pursuant to the Wisconsin
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`SIP and Wisconsin’s Title V permit program.
`
`a.
`
`Hydrite obtained its original operating permit for the Facility in 1999,
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`which was identified as Operation Permit No. 113063390-P01.
`
`b.
`
`Hydrite then obtained Operation Permit No. 113063390-P10, which was
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`in effect from May 1, 2008 to September 8, 2011.
`
`c.
`
`Hydrite then obtained Operation Permit No. 113063390-P12, which was
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`in effect from September 9, 2011 to April 18, 2017.
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`d.
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`Hydrite then obtained Operation Permit No. 113063390-P20, which was
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`in effect from April 19, 2017 to May 21, 2018.
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`e.
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`Hydrite then obtained Operation Permit No. 113063390-P21, which was
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`in effect from May 22, 2018 to May 20, 2019.
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`f.
`
`Hydrite then obtained Operation Permit No. 113063390-P23, which took
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`effect on May 21, 2019 and remains in effect.
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`These permits are referred to collectively herein as the Facility’s “Operation Permit.”
`
`83.
`
`In Operation Permit No. 113063390-P10 and all subsequent versions of the
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`Facility’s Operation Permit, HAP emissions from the Facility were limited to no more than:
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`(i) 1,666 pounds per month (10 tons per year) of any individual HAP; and (ii) 4,166 pounds per
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`month (25 tons per year) of all HAPs combined.
`
`a.
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`In these versions of the Operation Permit, a note accompanying this permit
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`condition states: “This limit was proposed by the facility to ensure that they are a
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`synthetic minor source of federal HAPs. The facility must be sure that they include the
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`emissions from all processes, tanks and fugitive emission sources at the facility which use
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`HAPs regulated under section 112(b) of the Clean Air Act, in determining compliance
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`with this emission limit.”
`
`b.
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`Another note in Operation Permit No. 113063390-P10 states:
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`“The facility is a minor source of HAP’s therefore will not be subject to the NESHAPs
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`(MACT) 40 CFR part 63, subpart FFFF, for Miscellaneous Organic Chemical
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`Manufacturing (MON).”
`
`84.
`
`At all times relevant to this Complaint, the Facility’s Operation Permit required
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`Hydrite to detect and minimize VOC and HAP emissions from equipment leaks through an
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`LDAR program that included periodic Method 21 monitoring.
`
`85.
`
`At all times relevant to this Complaint, the Facility’s Operation Permit required
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`Hydrite to prepare and maintain and update a written plan to calculate the VOC and HAP
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`emissions for each emission unit at the Facility, including updating the plan at least every five
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`years and whenever there were changes that would affect emissions from a unit.
`
`86.
`
`At all times relevant to this Complaint, the Facility’s Operation Permit required
`
`H