Date: November 14, 2022
To: Jonathan Carney
West Virginia Department of Environmental Protection Division of Air Quality
601 57th Street SE
Charleston, WV 25304
Via email (Jonathan.W.Carney@wv.gov)
Re: Comments on Proposed Renewal of Operating Permit for Union Carbide Corporation Institute Facility, Logistics (Group 2 of 2), Permit No. R30-03900005-2022 (2 of 2), and Request for Public Hearing
Dear Mr. Carney:
The undersigned groups—Moms Clean Air Force West Virginia, Our Future West Virginia, People Concerned About Chemical Safety, West Virginia Environmental Council, and Earthjustice (collectively, “Commenters”)—submit the following written comments to the West Virginia Department of Environmental Protection Division of Air Quality (DAQ) regarding DAQ’s preliminary determination to renew the operating permit for Union Carbide Corporation (UCC) for operation of its Logistics unit (Group 2 of 2), located within the Institute Facility, Plant ID No. 039-00005, 250 Carbide Road, Dunbar, WV 25064. Additionally, the undersigned groups request a public hearing and a 30-day extension of the comment period. The following comments and requests are timely submitted by the deadline of 5 pm Eastern Time, November 14, 2022, as provided by DAQ’s Fact Sheet and Notice of Comment Period for the proposed renewal.
REQUEST FOR PUBLIC HEARING AND EXTENSION OF THE COMMENT PERIOD
Commenters respectfully request that DAQ hold a public hearing on the proposed renewal of the operating permit (“Draft Permit”), Permit No. R30-03900005-2022 (2 of 2), for the Logistics unit. In addition, Commenters respectfully request that DAQ extend the comment deadline by an additional 30 days.
Under federal law, “all permit proceedings, including initial permit issuance, significant modifications, and renewals, shall provide adequate procedures for public notice including offering an opportunity for public comment and a hearing on the draft permit.” 40 C.F.R. 70.7(h); see also 42 U.S.C. § 7661a(b)(6). Under West Virginia regulations, “[t]he Secretary shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest on issues relevant to the draft permit(s).” W. Va. Code R. § 45-30-6.8.c.1. “The Secretary may also hold a public hearing at his or her discretion, whenever, for instance, such a hearing might clarify one (1) or more issues involved in the permit decision.” Id.
Commenters request a public hearing both due to the significant degree of public interest in issues relevant to DAQ’s proposed permit renewal and to clarify issues involved in the permit decision.
First, as DAQ is aware, there is a significant degree of public interest in the Logistics unit’s emissions of the potent carcinogen ethylene oxide and the health risks that these emissions pose to surrounding communities. For example, DAQ participated in a joint presentation in September 2021 with the Environmental Protection Agency regarding ethylene oxide emissions from four facilities in Institute and South Charleston, including the UCC Institute Facility. A large number of community members from Institute, South Charleston, and surrounding communities attended the meeting and posed questions to both agencies. DAQ stated that it would be taking certain next steps with regard to the facilities’ ethylene oxide emissions, including “[f]our (4) sets of short-term monitoring in both the South Charleston and Institute areas,” comparing this “air monitoring data with modeling results,” and “[modeling] actual emissions to compare with air monitoring data.” There is high public interest in DAQ’s findings as to the ethylene oxide emissions from the Logistics unit, including whether this monitoring data demonstrates different emissions or health risk from what DAQ and UCC have estimated in the past and how DAQ intends to protect community members from these emissions via its permitting authority.
Second, a public hearing would also clarify a number of issues involved in the permit decision, such as whether the permit includes monitoring and reporting requirements sufficient to assure compliance with all applicable emission limits and standards and whether the Logistics unit’s stated potential to emit and actual emissions of ethylene oxide are accurate, especially as compared to the recent monitoring data. Additionally, UCC’s application is missing vital emissions information, requiring clarification through a public hearing.
DAQ must therefore hold a public hearing on the proposed permit renewal to allow community members to voice their concerns, seek clarification, and pose questions to DAQ. Commenters request that DAQ schedule the hearing at a time and place that is accessible for the most affected community residents, including those who work during DAQ’s usual business hours.1
In addition, Commenters respectfully request that DAQ extend the public comment deadline by an additional 30 days. Community members need additional time to review the complex details of the Draft Permit and application, receive and review additional information from DAQ and EPA,2 and to draft more detailed comments on DAQ’s proposed renewal.
Commenters raise the following issues that they have identified with the proposed permit renewal. Commenters also intend to submit public testimony and additional comments in the requested public hearing and/or by the new comment deadline.
I. Improper Piecemealing of the Institute Facility and its Permitting
First, Commenters raise concerns with UCC’s piecemealing of the Institute Facility into separately owned and permitted units and by DAQ’s approval of this practice through the issuance of separate operating permits. This piecemealing prevents DAQ from issuing a permit that properly takes into account the Institute Facility’s total emissions footprint, connected processes and controls, and full effect on neighboring communities’ health. Additionally, by DAQ’s admission, this piecemealing may result in UCC circumventing major source thresholds and therefore avoiding the need to obtain a Title V operating permit or to comply with more stringent federal and state standards.
As DAQ provides in the fact sheet, “Union Carbide Corporation has transferred ownership and control of several facilities.” For example, DAQ previously permitted the Logistics unit as one of UCC’s eight “groups” of business units at the Institute Facility. The Logistics unit itself previously contained both ethylene oxide distribution and barge operations. However, UCC has transferred ownership of these business units at the facility over the years such that UCC “now only has two business units at its Institute Facility”: the Logistics unit (minus barge operations) and the Catalyst plant.
First, Commenters question whether this transfer of ownership and DAQ’s decision to separately permit each of these business units are permissible under the Clean Air Act and DAQ’s regulations. Each of these business units is still within the fenceline of the Institute Facility, and several of them have connected purposes, functions, and products. DAQ appears to acknowledge this reality in considering the combined potential to emit of the Catalyst plant and Logistics unit, but then opts to permit the units under separate Title V permits. Prior to 2019, the Logistics unit Title V permit considered the additional volatile organic compound (VOC) emissions of the connected barge operations, but the separate ownership now allows DAQ to look the other way.
Second, one of the most serious consequences of this artificial segmentation is that DAQ now takes the position that “UCC does not have a potential to emit any criteria pollutant over 100 tons per year, any single HAP over 10 tons per year, or any combination of HAPs over 25 tons per year”—that is, that the facility is not actually a major source on the basis of its potential to emit. While DAQ states that it will continue to consider the Logistics unit “a Title V source on the basis of once in always in,” DAQ also suggests that this will only continue “until such time the permittee requests review for removal from the Title V program and approval is granted by the Secretary.”3
Commenters strongly oppose DAQ allowing UCC to circumvent Title V permitting requirements and major source status on this basis. Title V permitting and the more stringent emissions standards for major sources exist to protect the public from large facilities’ emissions and associated health risks. A permittee should not be able to avoid these requirements merely by artificially dividing its operations into a number of separate non-major units. Offering this option to UCC would provide the same negative incentive for other large facilities to transfer ownership, avoid more stringent standards, and hide their full emissions footprint from the public.
II. The Draft Permit Improperly Includes an Affirmative Defense for Emergencies
DAQ must remove the unlawful affirmative defense for “emergencies” contained in the Draft Permit,4 which would allow UCC to emit unlimited amounts of dangerous pollutants such as ethylene oxide without penalty. The D.C. Circuit has held that affirmative defenses are unlawful5 and the EPA has repeatedly recognized the same.6 Because Congress created a private right of action for citizens in the Clean Air Act, only “the Judiciary, not any executive agency” may limit available remedies under that private right of action.7 “It is for the courts to decide whether to create an affirmative defense in these private civil suits,” not DAQ.8
Of further relevance to DAQ’s specific permitting decision here is that EPA has issued a proposed rule to remove the affirmative defense provisions from the applicable Title V regulations.9
Additionally, the DAQ must remove the affirmative defense from the Draft Permit because emission standards must apply at all times. Following the decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), finding that exemptions for emissions during periods of malfunction were unlawful, the EPA has removed such exemptions from many national emission standards for hazardous air pollutants, including the general standards.10 EPA is also subject to a court-ordered deadline to review and revise one of the two national standards that applies to the UCC facility.11 EPA must remove the outdated and unlawful malfunction exemption as part of that review and revision,12 as it has already done in the second national standard that applies to the UCC facility.13
For these reasons, DAQ must remove the affirmative defense from the Draft Permit.
III. Commenters Raise Serious Concerns with the Logistics Unit’s Significant Ethylene Oxide Emissions
As noted above in the public hearing request, one of Commenters’ central concerns with the Logistics unit and the proposed permit renewal is the unit’s emissions of the potent carcinogen ethylene oxide and the unit’s long history of problems with ethylene oxide emissions into nearby communities. While DAQ has taken certain steps to address these emissions—such as the recent monitoring—Commenters question whether DAQ has reflected these steps in permit renewal in any way.
- For example, UCC provides that the Logistics unit’s potential to emit ethylene oxide is 3.0 tons per year—the same as provided in past permit applications—and that the 2021 actual emissions are 0.20 tons. DAQ must use its recent monitoring of the facility’s ethylene oxide emissions to verify these estimated potential and actual emissions.
- Similarly, DAQ must use its monitoring data14 to check whether UCC is in compliance with the hourly (0.29 lbs/hr) and annual (2,539 lbs/year) emissions limits for ethylene
- Finally, DAQ should also use its monitoring data to determine whether the Draft Permit should include its own better monitoring requirements—such as fenceline monitoring— to ensure compliance with emissions limits and standards.
In January 2022, DEP undertook a fenceline monitoring project to measure EtO emissions near EtO-emitting sources, including several monitoring sites near the UCC-Institute facility (referred to in the Field Sampling Plan as Institute, WV site #10, #13, #14, and #15.15 The project (which used EPA-approved methods to detect and measure low concentrations of EtO) comprised of four separate rounds of sampling at eight sites, including the four sites listed above, and the results of the sampling project have been made available to the public. The results reveal alarmingly high concentrations (between 0.0375-1.3 parts per billion by volume (ppbv)) and to place these numbers into perspective, 0.0375-1.3 ppbv is equivalent to a probability of about 343-11,877 in one million excess cancer risk over a 70-year lifetime. As noted in the Field Sampling Plan (FSP), “EPA has established a generally unacceptable threshold of 100 in one million lifetime cancer risk (NATA FAQ: https://www.epa.gov/national-air-toxics- assessment/nata-frequent-questions.https://www.epa.gov/national-air-toxics-assessment/nata- frequent-questions).”16 While DEP states that “these single data points, on their own, cannot be used to draw conclusions regarding the lifetime health risks associated with EtO,”17 it is notable that the none of the fenceline monitoring samples at the UCC-Institute site fell at or below the method detection limit—a limit that is still far higher than EPA’s 100-in-1 million benchmark.
A subsequent EPA-approved EtO monitoring project conducted by UCC-Institute collected ambient air samples over the course of seven weeks (one 24-hour sample per week between May 24-July 6, 2022) at sample location #15. The results, collected by UCC, were provided to EPA, and made available to the public and the measured EtO concentrations fell between 0.571-2.36 ppbv – a 81.5% percentage increase compared to the highest concentration detected during the DEP-sponsored sampling project referenced, above.18
A related issue is UCC’s estimated potential to emit of 3.0 tons of ethylene oxide per year. This number is the same from previous applications, and yet UCC does not appear to provide any basis for this estimate. For every Emission Unit Form in Attachment E, UCC has left the “Potential Emissions” fields blank and has failed to provide any written explanation in the field requesting that the applicant “List the method(s) used to calculate the potential emissions (include dates of any stack tests conducted, versions of software used, sources and dates of emission factors, etc.).” Given the round number of 3.0 tons per year without any other supporting information, Commenters are concerned there is not a proper basis for this estimate. At the very least, DAQ must not renew the permit based on an incomplete application.
IV. The Draft Permit’s Requirements for Operation and Monitoring of the Logistics Unit’s Flares are Inadequate to Ensure Compliance with Emissions Limits and Standards
Commenters also raise serious concerns with regard to the Draft Permit’s requirements for the Logistics unit’s flares. The flares—one Primary Flare (B410) and one Backup Flare (A410)—serve as the only control devices for the unit’s emissions of ethylene oxide. In spite of the flares’ key role, the permit is inconsistent in regard to the flares’ required destruction efficiency and includes insufficient monitoring requirements to ensure compliance with the emissions limits.
First, the Draft Permit is inconsistent as to the required destruction efficiency of the flares, presenting numbers that range from 95 percent to 99 percent. For example, Attachment A to the Draft Permit sets out requirements that apply to the Logistics unit due to a consent order. For “Efficiency of Control Device” for both the Primary Flare and Backup Flare, the table provides 99 percent. By contrast, section 4.1 of the permit, pertaining to Limitations and Standards for Ethylene Oxide Distribution, provides: “The Primary Flare (B410) shall be designed and operated to reduce inlet emissions of total organic HAP by 95 percent or greater and shall meet the specifications described in the general control device requirements of 40 C.F.R. §63.11(b) listed below.” UCC’s application for the permit renewal includes a third number for the flares’ destruction efficiency, providing “at least 98%” in Attachment G for each of the two flares.
This is a significant range of destruction efficiencies, as a flare with 95-percent destruction efficiency will emit five times as much ethylene oxide as a flare with 99-percent destruction efficiency. If the flares’ required destruction efficiency is 99 percent pursuant to the consent order and this is the requirement necessary to ensure compliance with the permit’s emissions limits for ethylene oxide, then it is vital that the permit is clear and consistent on this requirement.
Second, the Draft Permit includes flare monitoring requirements that are not sufficient to ensure compliance with the emissions limits, as required by the Clean Air Act and EPA’s regulations for Title V permitting. See 42 U.S.C. § 7661c(a), (c); 40 C.F.R. § 70.6(a)(3)(i)(A).
While DAQ has improved the Draft Permit over the previous versions by including the text of monitoring requirements themselves rather than merely referencing applicable authority, the monitoring requirements themselves are the generic and outdated monitoring requirements of 40 C.F.R. § 63.11(b).19On several notable occasions over the past decade, EPA has recognized the shortcomings of the monitoring provisions of 40 C.F.R. § 63.11(b) and has revised standards for refineries and certain petrochemical source categories to establish improved monitoring that includes additional parameters (such as net heating value in the combustion zone) and shorter monitoring frequency.20
For example, these revised flare standards include a number of developments—not found in 40 C.F.R. § 63.11(b) —that better assure destruction efficiency:
- Requiring that flares meet a minimum net heating value of 270 Btu/scf, measured at the combustion zone rather than at the base of the flare. See 40 C.F.R. § 63.670(e). This measurement in the combustion zone is particularly important to ensure that the net heating value remains above the minimum level after the addition of assist steam or air and supplemental fuel.
- Requiring that flares maintain the net heating value on a 15-minute block average basis, in order to assure that there are fewer “spikes” or deviations from the minimum, as a longer averaging period would allow. 40 C.F.R. § 63.670(e), (m).
- Requiring that operators establish and maintain a system to monitor the flow rate of all vent gas, assist steam, and assist air to the flare on a continuous basis, as well as a system to monitor the composition of the flare vent gas at least once every 15 minutes, in order to ensure that the flare continuously maintains the minimum net heating value at the combustion zone. See 40 C.F.R. § 63.670(i), (j).
- Requiring that flares maintain certain maximum flare tip velocities, with monitoring systems to ensure that the flares maintain these maximum velocities on a 15-minute block average basis. See 40 C.F.R. § 63.670(d), (i), (k).
In fact, with respect to the higher frequency of monitoring in these revised standards, EPA’s Title V regulations require permitting authorities to add “periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source’s compliance with the permit.”21 But periodic monitoring on its own is not sufficient. The frequency of monitoring methods must bear a relationship to the averaging time used to determine compliance. Sierra Club v. EPA, 536 F.3d 673, 675 (D.C. Cir. 2008).
This is important to the Logistics unit’s emissions limits, given that there is an hourly ethylene oxide limit of 0.29 lbs/hr. Given that the flares—and their destruction efficiency—are the control technology underlying this emissions limit, the 15-minute monitoring frequency and averaging periods in EPA’s revised flare standards are necessary to ensure compliance with the Logistics unit’s hourly ethylene oxide emissions limit.
V. There are Significant Environmental Justice Concerns Associated with the Logistics Unit and the Institute Facility
Finally, there are serious environmental justice concerns involved in the UCC facility, the Logistics unit’s ethylene oxide emissions, and DAQ’s permitting decision. Both EPA and its Office of Inspector General have specifically identified the UCC facility as one of 25 “high-priority” ethylene oxide-emitting facilities that contribute to elevated estimated cancer risks equal to or greater than 100 in one million at the census tract level.22 There are numerous articles and investigations as to the serious health impacts that residents of Institute—as one of West Virginia’s only majority-Black communities—and surrounding communities experience from the UCC facility and the disproportionate cumulative impacts they face from the toxic emissions of the numerous facilities within “Chemical Valley.”23
Such environmental justice concerns are especially germane in Title V permitting decisions in the permitting authority’s duty to assure compliance with all underlying applicable requirements. Specifically, “Title V can help promote environmental justice through its underlying public participation requirements and through the requirements for monitoring, compliance certification, reporting and other measures intended to assure compliance with applicable requirements.”24
For these reasons, DAQ must grant Commenters request for a public hearing and extend the comment period to allow full public participation and not renew the Draft Permit until DAQ can ensure that all such concerns have been properly addressed and that the Draft Permit can assure compliance with all requirements.
Thank you for your time and consideration of this request.
James Yskamp, Esq.
Adam Kron, Esq.25
Senior Associate Attorney
Moms Clean Air Force
Interim Executive Director
Our Future West Virginia
Maya Nye, Ph.D.
People Concerned About Chemical Safety
West Virginia Environmental Council
1 See EPA, Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions 6-7 (Aug. 2022), available at https://www.epa.gov/system/files/documents/2022- 08/EJ%20and%20CR%20in%20PERMITTING%20FAQs%20508%20compliant.pdf.
2 Commenters have submitted a request for additional information regarding the UCC Institute Facility under the West Virginia Freedom of Information Act and are awaiting a response.
3 EPA’s 2020 interpretation of the Clean Air Act as permitting major sources to reclassify as area sources, thereby relieving the facilities of their obligation to comply with maximum achievable control technology (MACT) standards, conflicts with the Clean Air Act and is unlawful. Environmental and community groups have challenged this rule. See California Communities Against Toxics v. EPA, No. 21-1034 (D.C. Cir. Jan. 15, 2021).
4 Draft Proposed Permit for Union Carbide Corporation, Institute Facility, Logistics (Group 2 of 2), R30-039000005-2022, at 10-11 [hereinafter, “Draft Proposed Permit”].
5 See Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014).
6 See National Emission Standards for Hazardous Air Pollutants: Polyvinyl Chloride and Copolymers Production Reconsideration, 85 Fed. Reg. 71490, 71505 (Nov. 9, 2020); Oil and Natural Gas Sector: Reconsideration of Additional Provisions of New Source Performance Standards, 79 Fed. Reg. 79018, 79024 (Dec. 31, 2014); National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers, 80 Fed. Reg. 2871, 2879 (Jan. 21, 2015); National Emission Standards for Hazardous Air Pollutants Residual Risk and Technology Review for Flexible Polyurethane Foam Production, 79 Fed. Reg. 48073 (Aug. 14, 2014); National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil- Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial- Commercial-Institutional Steam Generating Units, 80 Fed. Reg. 8442 (Feb. 17, 2015); National Emission Standards for Hazardous Air Pollutants: Ferroalloys Production, 79 Fed. Reg. 60238 (Oct. 6, 2014).
7 Natural Res. Def. Council v. EPA, 749 F.3d at 1063 (quoting City of Arlington v. FCC, 569 U.S. 290 (2013)).
8 See id. at 1062.
9 See Proposed Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and the Federal Operating Permit Program, 87 Fed. Reg. 19042 (April 1, 2022).
10 See e.g. Court Vacatur of Exemption From Emission Standards During Periods of Startup, Shutdown, and Malfunction, 86 Fed. Reg. 13819 (Mar. 11, 2021).
11 See Consent Decree in Texas Environmental Justice Advocacy Services v. EPA, Case No. 1:20-cv-03733 (Feb. 18, 2022, D.D.C.) (setting deadline of December 15, 2022 for a proposed rule and March 15. 2024 for a final rule); Draft Proposed Permit (citing National Emissions Standards for Organic Hazardous Air Pollutants, 40 C.F.R. 63, Subparts F-H).
12 See e.g., Sierra Club v. EPA, 551 F. 3d 1019 (D.C. Cir. 2008).
13 See 79 Fed. Reg. 17340 (Mar. 27, 2014); Draft Proposed Permit (citing 40 C.F.R. Subpart PPP).
14 See West Virginia Department of Environmental Protection (WVDEP), Ethylene Oxide (EtO): WVDEP Monitoring Project (2022), available at: https://dep.wv.gov/key-issues/Pages/EtO.aspx.
16 See WVDEP, Field Sampling Plan: Ethylene Oxide Monitoring – Characterization of South Charleston and Institute, West Virginia (December 2021), available at: https://dep.wv.gov/key- issues/Documents/EtO/EtO%20Field%20Sampling%20Plan%20Final%20Dec%202021%20All %20Signatures%20Redacted.pdf.
18 Id. at 13.
19 Draft Proposed Permit at 21-24.
20 See, e.g., EPA, Parameters for Properly Designed and Operated Flares 1-1-1-2 (April 2012) (identifying four primary factors “that can reduce the destruction efficiency capabilities of the flare,” including over steaming, excess aeration, high winds, and flame lift-off), available at https://www3.epa.gov/airtoxics/flare/2012flaretechreport.pdf
21 40 C.F.R. § 70.6(a)(3)(i)(B); see In the Matter of Mettiki Coal, LLC, Order on Pet. No. III- 2013-1, at 7 (Sep. 26, 2014), available at https://www.epa.gov/sites/default/files/2015- 08/documents/mettiki_decision2013.pdf.
22 See EPA Office of Inspector General, Management Alert: Prompt Action Needed to Inform Residents Living Near Ethylene Oxide Emitting Facilities About Health Concerns and Actions to Address Those Concerns 4, 13 (March 2020), available at https://www.epa.gov/sites/default/files/2020-03/documents/_epaoig_20200331-20-n-0128_0.pdf.
23 See, e.g., Ken Ward, Jr., How Black Communities Become “Sacrifice Zones” for Industrial Air Pollution, ProPublica, Dec. 21, 2021, https://www.propublica.org/article/how-black- communities-become-sacrifice-zones-for-industrial-air-pollution.
24 See In the Matter of Valero Refining-Texas, L.P., Order on Pet. No. VI-2021-8, at 9-10 (June 30, 2022), available at https://www.epa.gov/system/files/documents/2022- 07/Valero%20Houston%20Order_6-30-22_0.pdf.
25 Adam Kron and Kathleen Riley are not licensed in West Virginia and are associating with James Yskamp.