ML20198L146
| ML20198L146 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 09/30/1997 |
| From: | Bishop R, Silberg J NUCLEAR ENERGY INSTITUTE (FORMERLY NUCLEAR MGMT &, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20198L140 | List: |
| References | |
| LBP-97-08, LBP-97-8, ML, NUDOCS 9710240258 | |
| Download: ML20198L146 (43) | |
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DOCKETED USNRC UNITED STATES OF Ah1 ERICA NUCLEAR REGULATORY COhih11SS10
,,)
p$ g Before The Commission OFRm OF SECIstW hhC SThF in the hiatter of
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Docket No. 70 3070 hiL LOUISIANA ENERGY SERVICES, L.P.
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(Special Nuclear hinterial (Claiborne Enrichment Center)
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License)
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NEl Ah11CUS REPLY BRIEF ON REVIEW OF LICENSING BOARD DECISION LBP 97 8 CONCERNING ENVIRONhiENTAL JUSTICE INTRODUCTION The Nuclear Energy Institute ("NEl")u has petitioned to submit this reply brief as an ami-cus in the review of the Atomic Safety and Licensing Board's (the " Board") Final Initial Decision, LBP 97-8,45 N.R.C.,_, (1997), concerning environmentaljustice. As permitted by the Commis-sion's Order of June 30,1997, CL197 8, NEl submitted its Amicus Briefon Review of Licensing Board Decision.LBP-97 8 ("NEl Br ") on August 8,1997. This reply brief responds to several additional arguments made by Citizens Against Nuclear Trash (" CANT")in its September 18, 1997 Opposition Brief on Appeal of LBP-97-8 (' Opp. Br,").
ARGUhiENT 1.
Discrimination Allegations Are Beyond the Scope of NEPA CANT claims that the National Environmental Policy Act ("NEPA") bars biased, discrimi-natory evaluations (Opp. Br, at 10-12), but CANT has n.ot, and cannot, cite any case for the u
NEl is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including regulatory aspects of generic operation and technical issues. NEI's members include all utilities licensed to operate commercial nuc! car power plants in the United States, nu.
clear plant designers, major architect / engineering firms, fuel fabricators, materials licensees, and other or-ganizations and individuals involved in the nuclear energy industry.
9710240258 970930 PDR ADOCK 07003070 C
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s proposition that an agency is obligated as part ofits evaluation of ensirc,nmental impacts under NEPA to investigate and evaluate allegations of racial discrimination by a private applicant, as or-dered by the Board in this case The cases cited by CANT at pages 11 12 ofits brief are inappo-site. They all concern a federal agency's general obligation under NEPA to evaluate in good faith, without prejudgment, the environmentalimpnis of a proposed major federal action. They do not involve any obligation by federal agencies to investigate under NEPA claims of racial bias or discrimination?
NEPA has never been interpreted in its 28 years ofits existence to require any such inves-tigation by federal agencies, and for good reason. The purpose of NEPA is procedural, to make sure that the federal agency has identified the potential environmental impacts of a proposed ac-tion so that this information is available to the federal agency in making those judgments. Andma
- v. Sierra Club,442 U.S. 347,350 (1979)("The thrust of(NEPA]is thus that emironmental con-cerns be integrated into the very process of agency decisionmaking"); Bohertson v Melhow Val-lev Citizens Council,490 U.S. 332,350 (1989)("NEPA itself does not mandate particular results, but simply prescribes the necessary process"). The intent or motivation of a privi,te applicant, such as LES, does not alter the potential environmentalimpacts that a federal agency must evalu-ate and consider in this decision making process?
E Calvert Cliffs Coordi atina Comm. v AEC. 449 F.2d 1109 (D.C. Cir.1971) involved the extent to n
which the NRC was required to evaluate emironmentalimnatin under NEPA. Emironmental Defensg Fund v Corps of Ennincsrs,492 F.2d i 123 (5th Cir.1974) involved whether the federal agency had given full good faith consideration of the environment under NEPA with regard to a project planned and ap-proved by the agency before NEPA's effective date. 492 F.2d at i129. Cedar Riverside Emtl. Defense Fund v.11 ills,422 F. Supp. 294 (D. Minn.1976), vacated and remanded for mootness,560 F.2d 377 (8th Cir.1977) involved failure of a federal agency to fully and accurately evaluate emironmental imDac15 Greene County Plannine Bd. v Federal Power Comm'n. 455 F.2d 412 (2nd Cir.), sert. denied,409 U.S.
84^ f 1972) held that a federal agency responsible for evaluating tanI9nmental impacis could not circulate ane.
spon the emironmental impact statement of a state agency as its own.
3 U
Tne mtent and motivation of the federal officials involved in the NEPA process could call into issue whether a fMetal agency has undertaken a good faith evaluation of the potential emitonmental impacts re-quired by NEPA, as suggested by sc ne of the cases cited by CANT. CANT, however, has made no asser-tion of NRC bias or discrimination here and the cases are irrelevant to the assertions that CANT has made.
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Accordingly, even though LES is confident that investigation into its intent or motivation will exonerate it completely ftom the baseless allegations that CANT has made, such an investiga-tion of a private applicant is a complete diversion from the focus and purpose of NEPA. It would Introduce issues totally unrelated to the evaluation of environmental impacts by the federal agency, such as the consideration in the proceeding below of the intent and motivation of the ap-plicant and its various consultants and employees and the statistical analysis of population by race, creed, and ethnicity. All this is far afield from the evaluation of environmental impacts of a pro.
posed course of action. No agency interpreting and applying NEPA, nor the Council for Environ-mental Quality in its guidelines, nor federal courts in their review of the federal government's implementation of NEPA have ever concluded that NEPA requires the investigation of claims of racial bias or discrimination. This long standing and consistent application and interpretation of NEPA should not be disturbed?
k Such a conclusion does not mean that racial discrimination is to be condoned. There are a 8
host of statutes that strike at illegal discrimination. NEPA, however, is not one, and never has been one. At this mature state ofits implementation, NEPA should not be reinterpreted to open a whole new aren:, ofinvestigation never before deemed to be part of NEPA by the agencies imple-menting NEPA, the CEQ charged with developing guidelines for NEPA, or the courts mandated to ensure that agencies adhere to the intent and purpose of NEPA.
II.
Due Process Considerations Do Not Require investigation or Review of Siting Criteria for Racial Blas CANT is incorrect in suggesting that the Due Process Clause of the Fifth A.mendment of the Constitution somehow compels the NRC to address alleged discriminatory conduct of a li-cense applicant. Ett Op. Br at 13. While the cases cited by CANT reflect the Constitution's pro.
hibition against invidious discrimination by the government, none of the cases holds that the NRC would become a participant in alleged discriminatory conduct of an applicant through the granting Sm gA, Watt v. Alaska,451 U.S. 259,272 73 (1981); INS v. Cardoza Fonseca. 480 U.S. 421,448
- n. 30 ( 1987) 3
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of a license. To the contrary, case law holds that the Constitutional prohibitions against discrimi.
s nation do not eply unless the government compels some discriminatory action. Adickes v s It Klesh & Co.,398 U.S.144,170 (1970)(the government is responsible for the discriminatory acts of a private party when it has compelled those acts).*
In particular, mere approval of or acquiescence in the initiatives of a private party is not sufficient tojustify holding the government responsible for those initiatives. Blum v. Yarettky, 457 U.S. 991,1004 05 (1982). Assntd, Carlin Communitailon. Inc. v. Southern Bell,802 F.2d 1352,1357 (llth Cir.1986). Rather, the Supreme Court has held that a governmental body not.
mally" may be responsible for a private entity's decision only when the government has exercised coercive power or has provided such significant encouragement, either overt or covert, that the private entity's choice must in law be deemed that of the government. Blum v. Yattiiky,457 U.S. at 1004.
Consistent with this principle, the fact that a business is subject to extensive government regulation does not convert the regulated entity's acts into those of the government. Blum v.
yatetsky,457 U.S at 1004; Jackson v. Metropolitan Edison Co.,419 U.S. 345 (1974); Andstion
- v. US Air. Inc. 818 F.2d 49, 56 (D.C. Cir.1987); Fidelity Financial Coro. v. Fedstal Home Loan Bank,792 F.2d 1432,1435 (9th Cir.1986), cert denied,479 U.S.1064 (1987); Snow v. Bechtel Constr.. Inc. 647 F. Supp.1514 (C. D. Cal.1986)(extensive regulation of the nuclear energy field was not sufficient to implicate state action). In the same vein, licensing is not enough to impress the imprimatur of the government on a licensee's actions. Moose Lodge No 107 v. Irvis. 407 U.S.163,170 (1972); Lyles v. Executive Club I.td.,670 F. Supp. 34, 36 (D.D.C.1987); DICyrI Most of the cases discuss the limitation of the Equal Protection Clause to " state action." Since the Due Process Clause of the Fifth Amendment is similarly limited to the actions of the government - ssg, eg, Ca:
nadian Transo. Co. vJniteiSlates,663 F.2d 1081,1093 (D.C. Cir.1980) ~ the same standards and con-
'siderations apply.
A private entity's actions reay also be considered " state action" subject to the reach of the Due Process or Equal Protection clauses of the Constitution if the private entity has exercised powers that are " tradition-ally the exclusive prerogative of the state." Blum v. Yaretsky,457 U.S. 2t 1005. nat is clearly not the is-suc here.
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4 yJaki,349 F. Supp. 452,463 (S.D. Tex,1972), affd,479 F.2d 1044 (5th Cir.1973). Sic ahg San Francisco Arts & Athkiics. Inc. v United Sigtes Olympic Comm,483 U.S. 522,543 (1987)
(granting a charter does not render ai entity a governmental agent).
Even regulations directly applicable to an action alleged to be discriminatory are insum.
cient to establish state action where such regulations do not compel the discriminatory treatment.
Blum v. Yaretsky,457 U.S at 1008. There is no governmental action unless the action is made on the basis of some rule of decision for which the government is respensible. &cadell Baker v.
Kohn,457 U.S. 830,843 (1982). The requisite nexus to the government is absent when the deci.
sions are based on independent professionaljudgments and are not subject to governmental direc-tion. West v Atkins,487 U.S. 42,46 (1988).
These principles were applied to an NRC licensee in Mathis v. Pacific Gas & Elec. Co.,
891 F.2d 1429 (9th Cir.1989). There, the Court held that a licensee's decision to deny two em-ployees access to a nuclear plant because they had failed psychological examinations did not con-stitute Federal action because the licensee's decision was based on professionaljudgments and not a standard of decision prescribed by the NRC. Id at 1432.8 In light of these precedents, it is clear that LES' site selection process does not constitute state action and hence is not a proper subject to resiew under the Due Process Clause. There is no NRC regulation establishing the standard of decision for site selection or dictating LES' choice.
Rather, LES' siting decision reflects independent professionaljudgments considering a variety of objective factors directly related to the siting of this facility No NRC regulations or policies co-erced or compelled LES to choose the LeSage site. And there is certainly no NRC regulation, policy, or practice that coerces or encourages the choice of a site based on the race or economic 2
he Court held that the licensee's denial of access to a third employee who had failed a drug test might -
constitute federal action if the employee were able to prove that NRC policy had established a standard of decision coercing the licensec's action. 891 F.2d at 1433 34. In a related case, the Court subsequently found that the third employce's denial of access was not based on NRC policy. hiath v Pacific Gas &
Elec. Co. 75 F.3d 498 (9th Cir.1996).
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status ofits inhabitants. Without such a nexus to NRC regulation, a Due Process Clause issue simply does not arise.'
Any contrary holding would open a veritable Pandora's Box, and to no avail. If the Com-mission were found to be generally responsible under the Due Process Clause for its licensees' ac-tions and decisions, it would be equally obligated to police NRC licensees' actions for sexual discrimination, religious discrimination, invasion of privacy, abridgment of free speech, and the like. The Congress has not charged the Commission with responsibility to regulate in these areas, and the Commission has neither the resources nor the expertise to delve into such matters. As im-portant as preventing discrim nation may be, it is not a function that has been assigned to the i
Commission either by statu'.c or by the Constitution. The Commission cannot stretch the bounds ofits authority beyond its statutorily dermed responsibilities through any over broad interpreta-tion of the Due Process Clause, or for that matter, through any over-broad interpretation of the Executive Order.
111.
Section 2-2 of Executive Order 12898 is Not and Cannot be Broader Than Title VI of the Civil Right Act CANT is also incorrect in arguing that Section 2 2 is broader than Title VI of the Civil Rights Act. Opp. Br. at 1415. CANT argues that if the President had intended to limit the appli-cability of Section 2 2 to those programs, policies and activities receiving Federal assistance (con-sistent with the scope of Title VI), Section 2-2 would have said so. This argument fails for two reasons. First, the Presidential Memorandum accompanying the Executive Order reflected the Paident's intent for the Order to be consistent with Title VI of the Civil Rights Act. Second, as previously discussed in NEl Br. at 910, the Executive Order cannot create new substantive law.
Congress has clearly defined tiie scope of activities subject to protection under Title VI, and the U
CANT might argue that the NRC's review of the siting criteria for racial motivation and disparate im-pact in this proceeding is sufficient govemmental involvement to invoke the Due Process Clause. Such an argument, however, would be circular and unsound. If the Commission has no substantive authority or re-sponsibility to perform such reviews in the first place, it cannot manufacture such authority or icsponsibil-ity through an ullia rirn resiew.
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m w v.a m nwa f
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President has no authority to expana or alter those specified activities Since Congress has e.,
cluded Federal licensing activities from Title VI's prohibition (sec NEl lir. at 12 n.ll), the Prei.
dent cannot use the Executive Order to rewrite Title VI to now include licensing?
Further, the President has no authority to expand the NRC's substantive statutory author-ity. It has long been held that an intervenor in an NRC proceeding has standing to iaise issues only within the zone ofinterests protected by the Atomic Energy Act or NEPA. Yanker A10 mis Elcsiris_Co (Yankee Nuclear Power Station), CLI 961,43 N.R.C.1,6 (1996). The prevention of discrimination has never been recognized as an interest protected by either of these statutes, and the Executive Order cannot be construed as authority to inject this new issue into NRC proceedings.
Thus, both before and subsequent to Executive Order 128998, the issues to be resolved in an NRC licensing proceeding remain unchanged -- Lt,, whether the requirements of the Atomic Energy Act and NEPA have been satisfied such that the NRC should issue a license. Ats. erd, Shintech, supta, at 8 (" Petitioners have not shown how theli particular environmentaljustice con-cerns demonstrate that the Shintech Permits do not comply with applicable requirements of the
[ Clean Air] Act").
A recent order issued by the Administrator of the Emironmental Protection Agency (" EPA") has adopted this same interpretation of the Executive Order. Sss Order Responding To Petitioners' Requests That ne Administrator Object To issuance Of State Operating Permits, In the Matter of Shintech Inc. Aqd its Affili:ttes' Polvsinyl Chloride Production facility, Permit Nos. 2466 VO,2467 VO,2468 VO (Sept.
10,1997)("Shinlcch")(Copy attached). These, the Administrator noted that Executive Order 12898 cre-ated ng new legal rights but was limited to directing agencies to implement the provisions of the Order con-sistent with, and to the extent permitted by, existing law. Shintcsh at 7 n.5. Following this logie, the Administrator did at apply - contrary to CANTS assertions - Section 2 2 of the Executive Order to the issuance of perr.,a under the Clean Air Act but limited the pursuit of such emironmentaljustice claims to petitioners' complMnt under Title V1. Id. at 7 8. Accordmgly, Section 2 2 is not an independent vehicle for pursuing emironm..ntaljustice claims, as claimed by CANT and as held by the Board. Rather, the pursuit of emironmental justice claims under Section 2 2 is hmited to that permitted by existing law - 11. Title VI, which, as discussed above and as implicitly acknowlalged by CANT, does not apply here.
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F IV.
NEPA Does Not Require or Authorire Review of Disproportionate Irnpacts
?
CANT misstates NEl's argument on disproportionate impacts in order ta create a straw-man that it can then car,ily knock over. Sec Opp. Dr. at 28 31. In its opening brief, NEl argued that :he issue under NEPA "is not whether a particular major federal action, such as the licensing of the CEC, has a dispropo:tionate impact on minority or low income populations, but whether there are significant adverse im.oacts regardless of the population affected." NEl Drief at 17. NEl does not argue, as claimed by CANT, that " consideration of adverse environmentalimpacts on minority communities issues is beyond the scope of NEPA." Opp. Br. at 29. To the contrary, NEl agrees that significant, adverse impacts must be evaluated under NEPA, regardless of the population affected.
Accordingly, CANT's sweeping statement that "NEPA's environmental protections ex.
tends to 'all Americans,'" (Opp. Dr. at 29), is completely tme but totally irrelevant to this case.
Indeed, it is NEl's position that a focus on alleged disproportionate impacts incurred by a particu-lar class or race distorts NEPA's broad mandate of emironmental protections for all Americans by suggesting that the significance of environmental impacts or the level of their mitigation are to be judged based on the race or economic status of those affected. Nothing in NEPA or its imple.
mentation of more than 25 years mandates a disproportionate impact analysis focused on selected populations of differing race or economic strata.
None of the cases cited by CANT is to the contrary. For example, Tongass Conservation Seq'y v. Chency,924 F.2d 1137 (D.C. Cir.1991) and Coalition for Canyon Pregrvaticn v. Bow-cu,632 F.2d 774 (9th Cir.1980) simply recognize that proximately related secondary, socio-economic impacts are to be evaluated untU NEPA in conjunction with primary physical impacts on the emiroi, ment. These and similar such holdings do not intimate any disproportionate impact analysis such as the urged by CANT in this case.
8
Similarly,liknly v. Kleindienst,471 F.2d 823 (2d Cir.1972), cert denied. 412 U S. 908 (1973), quoted by CANT, does not support its cause. That case called for agency consideration of cumulative environmental impacts arising from, for example, *[o]ne more factory polluting air and water in an aren zoned for industrial use." 471 F.2d at 831. llanly does not support or call fer a disproportionate impact analysis of the sort urged by CANT here, focused on selected popu.
lations of differing race or economic strata.
In short, NEPA focuses on significant adverse impacts. That is the legal standard for evaluating the adequacy of a federal agency's evaluation of both primary environmental and sec-ondary socio economic impacts under NEPA, not a disproportionate impact analysis such as that urged by CANT.
CONCLUSION For the reasons discussed herein and in NEl's August 8,1997 brief, the Commission should reverse the Board's decision.
Respectfully submitted, Nuclear Energy Institute Shaw, Pittman, Potts & Trowbridge 17761 Street, N.W.
2300 N Street, N.W.
Washington, D.C. 20006 Washington, D.C. 20037
- N'bc$p f gy)
/t Robert W. Bishop Ja(f. $ilberg j
Vice President and General Counsel David R. Lewis Paul A. Gaulder Counsel for Nuclear Energy Institute Dated: September 30,1997 9
(
BEFORE THE ADMINISTRATOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
)
IN THE MATTER OF SHINTECH
)
INC. AND ITS AFF LIATES'
)
POLYVINVL CHLORIDE
) CROER RESPCNDING TO PETITICNERS' PROCUC~iICN FACILITY
) REQUESTS TRAT THE AOMINISTRATOR
) OBJECT TO ISSUANCE OF STATE Permit No. 2466-VO
) OPERATING PERMITS No. 2467-VO
)
No. 2468-VO
)
)
ORDER PARTIALLY GRANTING AND PARTIALLY DENYING PETITIONG FOR OBJECTION TO PERMITS On May 22, 1997, the Tulane Environmental Law Clinic on behalf of the St. James Citizens for Jobs & the Environment, Louisiana Environmental Action Network
(" LEAN"), St. John Citizans for Environmental Justice, St. Charles Environmental.
Coalit ion, Gulf Coast Tenants Organization, Southern Christian Leadership Conference, Louisiana' Citizen Action, Concerned Citizens of Iberville Parish, Action Against Waste e d to Restore the Environment, Ascension Parish Residents Against Tvxic Pollution, River Area Planning Group, Save Our Selves, North Baton Rouge Environmental Association, Neighbors Assisting Neighbors, Delta Greens, Louisiana Coalition for Tax Justice, Leugue of Women Voters of Louisiana, and the Sierra Club, joined by Greenpeace
(" Petitioners"), petitioned the Environmental Protection Agency
(" EPA" or "the Agency") to objeat to the issuance to Shintech, Inc., and Its Affiliates ("S hint e ch") of proposed state operating permits issued pursuant to Titic V of the Clean Air Act ("CAA" or "the Act"), 42 U.S.C.
55 7661-7661f
(" Pet. of May 22".).I The Louisiana Department of Environmental Quality ("LDEQ") had proposed to issue Title V permits to Shintech for the operation of a chlor sikali production plant.
(the "Shintech Chlor-Alkalt Permit"), the operation of a polyvinyl chloride ("PVC") production plant (the "Shintech PVC The Tulane Environmental Law Clinic first petitioned EPA to object to issuance of the proposed Shintech Title V t
permits on April 3, 1997.
Because EPA received this petition prior to the. expiration of the Agency's 45-day review period under section 505 (b) (1) of the Act, Petitioners resubmitted the petition on April 16, 1997.
On May 22, the Tulane Environmental Law Clinic filed a third petition incorporating the issues raised in the earlier petitions as well as raising additional issues.
- ne Tulane Environmental Law Clinic subsequently withdrew the petition filed on April 16, 1997, with the exception of four footnotes and an attachment.
iw Permit"), and the operation of a vinyl chieride monomer ("VCM")
production plant (the "Shintech VCM Permit") in Convent, Louisiana, St. James Parish (collectively, the "Shintech Permits").
In addition, LDEQ had proposed to issue a single Prevention of Significant Deterioration ("PSD") preconstrue: ion permit for all three plants, pursuant to 42 U.S.C.
SS 7910 (a) (2) (c) & 7471, under the State's merged preconstruction-eperating permit program ("Shintech PSD Permit").
On May 30, 1997, LEAN and St. James Cititens for Jobs and the Environment filed an additional petition requesting that EPA terminate or revoke the Shintech Permits, which were issued as final-permits by LDEQ on May 23, 1997
(" Pet, of May 30").
LEAN subsequently submitted a petition on July 29, 1997, more than 60 days after the axpiration of EPA's 45-day review period under section 505(b), requesting that EPA revoke the Title V permits issued to Shintech, based upon alleged objections ghat arose after the public comment periode provided by LDEQ
(" Pet. of July 29").
.All cogether, Petitioners requested that EPA object to the issuance of the Shintech Chlor-Alkali Permit, the Shintech PVC Permit, and the Shintech VCM Permit, and in their later petitions after issuante of the permits, that EPA terminate or revoke the three Shintech operating permitd, pursuant to section 505 (b' (2) of the Act.
For the reasons set forth below, I grant Petitioners' requests in part and deny the remainder of their requests.
I.
STATt' TORY AND REGULATORY FRAMEWORK Section 502 (d) (1) 7 the Act requires each state to develop and submit to EPA an operating permit program intended to meet the requirements of Title V.
The State of Louisiana submitted a Title V program governing the issuance of operating permits on November 15,1993., 'and subsequently revised this program on November 10, 1994.
Eta 40 CFR Part 70, Appendix A.
In September of 1995, EPA granted full approval of the Louisiana, Title V operating permits program, which became ef f ective in October, 1995.
Saa 60 ffJi. Rag. 472 96 (Sept. 12, 1995); 40 CFR Part 70, Appendix A.
This program is codified in Louisiana Administrative Code
(" LAC"), Title 33, Part III, Chapter 5, Section 507 EL 112 Major stationary sources of air pollution and other sources covered by Title V are required to obtain an operating permit that includes emission limitations and such other conditions as are necessary to assu:e compliance with applicable requirements of the Act.
Eta CAA 5 5 502 (a) & 504 (a).
Under section 505 (b) of the Act, the Administrator is authorized to review state operating permits issued pursuant to Title V and to object to permits that fail to comply with the 2
o applicable requiremen s of the Act.
In particular, under see:icn 505 (b) (1) of the Act, EPA is to object to the issuance of a preposed Title V permit if the Agency determines that the permi:
is *not in ecmpliance with the applicable requirements of this Act, including the requirements of an applicable implementatien plan."
For purposes of the Administrator's review and objection opportunity pursuant to section 505(b), the applicable requirements of a state implementation plan
(" SIP") include the applicable subst'antive and procedural requirements of the relevant state PSD program.*
When EPA declines to object to a Title V permit on its own initiative, section 505 (b) (2) provides that any person may petition the Administrator to object to the issuance of a permit by demonstrating that the permit is not in compliance wi:h applicable recuirements.
Egg also 40 CFR S 70.B(d).
Pursuant to section 505 (b).(2) of the Act, petitions "shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the pe.mitting agency (unless the petitioner demonstrates in the petition to the Administrator tnat it was impracticable to raise such objections within such period or unless the grounds for such objection arose af ter such period)."
Id.
2 Sections 110 (a) (2) (C) and 161 of the Act require each state to include a PSD program in its SIP.
See also 40 CFR S 51.166.
The EPA approved a PSD program in the State of Louisiana's SIP or. April 24, 1987.
Ett 52 Fed. Egg. 13671; 331 also 40 CFR S 52.986.
Where a state or local government has a SIP-approved PSD program, the merits of PSD issues can be ripe for consideration in a timely petition to object under Title V.
Under 40 CFR S 70.1(b), "all sources subject to Title V must have a permit to operate that assures complianue by the source with all applicable requirements."
Applicable requirements are defined ip section 70.2 to include: "(1) any standard or other requirement provided for in the applicable implementation plan approved o'r promulgated by EPA through rulemaking under Title I of the (Clean Air]
Act...."
The LDEQ defines " federally applicable requirement," in relevant part, to include 'any standard or other requirement provided for in the Louisiana State Implementation Plan approved or promulgated by EPA through rulemaking under title I of the clean Air Act that implements tha raleoant requirements of the Clean Air Act, including any Tevisions to that plan promulgated in 40 CFR part 52, subpart T.'
LAC 33:III,502.
Thus, the applicable requirements of the Shintech Permits include-the requirement to obtain a PSD permit that in turn complies with applicable PSD requirements under tbm Act, EPA regulations, and the Louisiana SIP.
3 4
II.
BACKGROUND Shintech submitted three applications to the LDEQ on July 23, 1996 for state operating permits issued pursuant to Title V of the Act, in order to operate a chlor-alkali production facility, a DVC production facility, and a VCM production facility in Convent, Louisiana, St. James Parish.
At the same time, Shintech submitted &n application for a PSD preconstruction permit for these*three facilities.
The LDEQ noticed a single draft permit for the Shintech plants, addressing the PSD and operating permit applications, and opened a public comment period on the draft permit on Novembe' 7,
1996.
The LDEQ submitted the draft permit to EPA's Region VI at this time.
The EPA submitted written comments on the draft permit on November 20, 1996, and again on November 27, 1996.
The LDEQ held a public hearing on the draft Shintech permit on December 9, 1996.
The LDEQ twice extended the public comment period on the draft Shintech permit, from December 7, 1996 t'o January 8, 1997, and from ' January 8, 1997 to January 23, 1997.
On February 18, the LDEQ issued proposed PSD and operating permits for the Shintech plarts.
The Agency's Region VI provided oral comments to the LDEQ on the proposed permits but did not provide written technical commedts.
The EPA's 45-day review period under CAA section 505 (b) (1) of the proposed Shintech Permits submitted on February 18 ended on April 3.
On May 23, 1997, LDEQ issued a final PSD permit and three final Title V operating permits to Shintech for its chlor-alkali, PVC, and VCM plants.
Under the authority of these permits, Shintech proposes to construct and operate a 1.30 billion pound per year PVC production complex.
The complex will be considered a major source of particulate matter _ ("PM/PMa"), nitrogen oxides ( "!Kh " ), _
carbon monoxide ("CO"), volatile organic compounds ("VOCs"), and hazardous air pollutants
(" RAPS").
It wi11 include multiple sources of air emissions, including boilers, thermal exidizers and scrubbers, furnaces, driers, storage vessels, and fugitive emissions.
III. ISSUES RAISED IN THE PETITIONS Petitioners' Title V petitions challenge numerous provisions of the Shintech operating permits for alleged failures to comply with applicable requirements of the Clean Air Act.
In addition, Petitioners raise environmental justice concerns and request that EPA object to the permits under the authority of Executive Order 12898 (" Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations"), 59 End. Eng.
7629 (Feb. 16, 1994) (codified at 3 CFR at 859 (1995)), and 4
1 i *
(
section 505 (b) (2) of the Act.
Finally, Petitioners reques: t he.t EPA object to the Shintech Permits on the basis of alleged procedural deficiencies under Title V in the issuance of the final permits.
Each of these objections is addressed below.
A.
Issues Warranting Partial Grant of the Petitions To justify exercise of an objection by EPA to a Title V permit pursuan: to section 505 (b) (2) of the A:c, Petitioners must demonstrate tha: the permit is not in compliance with the requirements of the Act, including the requirements of the Louisiana SIP.
Petitioners have identified the following issue justifying the Agency's objection to the Shintech VCM Permit.
Petitioners claim that the VCM cracking furnaces are reactors and thus meet the definition of a process unit in 40 CFR S 63.111.
Pet. of May 22 at 20.
Petitioners further claim that as process units, the VCM cracking furnaces are subject to the control'and venting requirements of the Hazardous Organic National Emission Standards for Hazardous Air Pollutants (the
" HON"), 40 CFR Part 63, Subparts F, G & H, the requirements of which should be set forth in the VCM Title V permit.
Id.
These claims are correct.
The HCN regulates emissions of certain gas streams (known as process vents) that are discharged from chemical manufacturing process units.
Process units, in turn, are defined to include such equipment as reactors and distillation units.
40 CFR S 60.111.
Therefore, if a piece of equipment fits within the definition of a reactor, it is considered to be part of a process unit and is potentially subject to regulation under the HON.'
The HCN defines a reactor as "a device or vessel in which one or more chemicals or reactants, other than air, are combined or decomposed in such a way that their molecular structures are altered and one or more new organic compounds are formed...."
40 CFR S 63.'101.Because the cracking furnaces in the VCM plant use heat" to alter the molecular structure of 1,2-dichloroethane to produce vinyl chloride and hydrogen chloride, the furnaces meet the definition of a reactor and should be considered to be a process unit.
As a process unit, the cracking furnaces are subject to regulation under the HON and all process vents associated with these reactors must meet the venting and control requirements in 40 CFR S 63.113.
The Shintech VCM Permit thus must be revised to add process 3
To be subject to the HON, a process unit must also meet the applicability criteria specified in 40 CFR S 60,100 (b) (1)-
(3).
40 CFR S 63.101(b).
The cracking furnaces in the VCM plant meet these applicability criteria.
5
i vent emission points for the cracking furnaces.
Process vents include gas streams that are either discharged directly to the atmosphere or are discharged to the atmosphere after diversion through a product recovery device.
40 CFR S 63.101.
The permit must also be further revised to require compliance with the appropriate gas stream emission controls required by the HCN.
The selection of appropriate controls wall depend on whether the vents are categorized as " process vent l's" or ' process vent 2's."
The permit shall also specify the appropriate monitoring, recordkeeping and reporting requirements of the HON for these emission points.
Although the EPA is not objecting to the Shintech Permits on the remaining grounds raised b/ Petition-4 (discussed below),
in the course of reviewing the Shintech Permits in response to the petitions, EPA has identified additional technical deficiencies in the permits that were not raised or demonstrated by Petitioners.
These deficiencies have been discussed with LDEQ, and in a letter to EPA dated September 8, 1997, LDEQ has stated its intention to reopen the Shintech Permits for cause pursuant to LAC 3 3. III. 529 and 40 CFR S 7 0.7 (f) to address them.
B.
Issues Warranting Partial Denial of the Petitions 1.
The May 22 submittal from Petitioners requests that EPA object to the proposed Shintech Title V permits on the basis of environmental justice concerns.'
Petitioners assert that issuance of the Shintech Permits would disproportionately burden the surrounding predominantly African-American and low-income populations with increased levels of pollution, and increased health and environmental risks.
Pet. of May 22 at 6-14.
Petitioners argue that permitting the Shintech facility in Convent would add too much additional air pollution to an area that Petitioners stress already bears a disproportionately high level of ' industrial
- pollution from existing f acilities.
Id at 10.
Specifically, the petition raises concerns about increased exposure to RAPS as a result of emissions from the f,acility.
Id.
at 11-14r Petitioners further claim that environmental justice concerns mandate that Shintech go beyond the requirements o' the Act in controlling RAP emissions from the PVC plant.
Id at 22-27.
Finally, Petitioners maintain that in assessing the possible Petitioners do not define their use of the term
" environmental justice concerns," but it is apparent that their petitions use the term, in part, to refer to alleged disproportionato impacts and burdens from pollution levels, and health and environmental risks, on minority and low-income populations.
6
I.
impacts of the Shin:ech complex on the surrounding African-American and low-income communities, EPA should take in:o consideration what Petitioners characterize as LDEQ's ineffec:ive
-enforcement record.
Id. at 27-28.
For these reasons, Petitioners allege that the "pr: posed permit and underlying permit applications submitted by Shintech, Inc. and Its Affiliates... fail to satisfy certain provisions of the Clean Air Act and federal policies on environmental justice."
Pet, of May 22 at S.
Specifically, Petitioners argue that Executive Order 12898 requires EPA to object to the proposed permits if issuance of the permits will have the environmental justice consequences alleged by Petitioners.
Id. at 5-8, 22-2,3.
Petitioners also suggest that the above-mentioned considerations constitute grounds under the Act for EPA to object to the Shintech Permits.
Id. at 6-7.
Finally, in separate administrative actions in May and July, some of the Petitioners filed a complaint and amended complaint with EPA against the LDEQ under Title.VI of the Civil Rights Act.of 1964, as amended, 42 b
U.S.C.
5 2000d 11 ang.
(" Title VI"), and EPA's implementing regulations, 40 CFR Part 7, alleging environmental justice claims of racial discrimination in the issuance of the Shintech Permits.
On February 11, 1994, the President issued ExecLtive Order 12898, entitled " Federal Actions' to Address Environmcatal Justice in Minority Populaticas and Low-Income Populations," 59 End. Eng.
7629, and an accompanying memorandum, 30 Weekly Comp. Pres. Doc.'
279-80 (Feb. 14, 1994), to the heads of federal departments and agencies.
Executive Order 12898 establishes the Administration's policy for identifying and addressing disproportionately high and adverse human health or environmental effects of *ederal agency programs, policies, and activities on minority communities and low-income communities.'
As noted in the Presidential memorandum that acco'mpanies Ex'ecutive Order 12898, it is designed to focus the attention of federal agencies on the human health ~and environmental conditions in these communities to realize the goal aof achieving-environmental justice.-
The Presidential memorandum emphasizes several provisions of environmental, civil rights, and other statutes that provide opportunities for agencies to address environmental hazards in minority communities and low-income communities.
In relevant'part, it identift+9 Title VI of the Civil Rights Act as a tool for promoting environmental justice in programs or activities affecting human health or the environment that receive federal financial assistance.
While Executive Order 12898 was intended for internal management of the executive branch and not to create legal rights, federal agencies arc required to implement its provisions
" consistent with, and to the extent permitted by, existing law."
Sections 6-608 and 6-609, 59 Ead. Egg. at 7632-33, 7
t As a recipient of EPA financial assistance, the pr: grams and activities of the LDEQ, includi..g its issuance of the Shintech Permi:s, are subject to the requirements of Title V! of the Civil Rights Act and EPA's implementing regulations.
As noted above, some of the Petitioners have filed an administrative c:mplain:
with EPA under Title VI challenging the issuance of the ShinteC.:
Permi:s.
The Agency believes that the environmental justice claims raised by. Petitioners in their Title VI ccmplaint deserve serious attention.
Consistent with the purpose of Executive Order 12898 and the use of Title VI as a tool for achieving the goe1 of environmental justice, EPA has accepted for investigation the Title VI complaint filed by Petitioners.
Under EPA's Title VI regulations, the EPA Office of Civil Rights is conducting the investigation, which is ongoing.
In addition, the State of Louisiana has agreed to address the environmental justice issues raised b;. Petitioners, and EPA has committed to work with the State to address the issues and find an appropriate resolution.
Petitioners argue in their petitions that Executive Order 12899 requires EPA to object under the Clean Air Act to the proposed Shintech Permits on environmental justice grounds.
Under section 505 (b) (2) of the Act, however, a petitione: must demonstrate that a permit is not in compliance with applicab.le requirements of the Act.
While,there may be authority under the Clean Air Act to consider environmental justice issues in some circumstances, Petitioners have not shown how their particular environmental justice concerns demonstrate that the Shintech Permits do not comply with applicable requirements of the Act.
In light of the foregoing, in response to Petitioners' request that EPA object to the Shintech Permits'on this basis, their petitions are hereby deni dd.
2.
Technical issues.
Petitioners claim that the Shintech PVC and VCM Permits contain " numerous serious technical deficiencies" which mandate that EPA'objeci to the permits.
Pet, of May 22 at 14; agg also Pet. of May 30.
Por the reasons set forth below, Petitioners have failed to demonstrate that the alleged technical deficiencies described in the petitions, with the exception of the issue identified above, warrant objection by EPA.
Petitioners claim that the Shintech PVC Permit fails to incorporate the requisite control technology requirements applicable to storage tanks contained in 40 CFR S 60.110b (New Source Performance Standards ("NSPS") Kb-Storage Tanks) to point source P-11, a 12,0C0 gallon storage tank.
Pet, of May 22 at 15.
Although storage tanks with a capacity of less than 75 m' (approximately 19,875 gallons) are subject to the recordkeeping 8
1
provisions of 40 CFR S 60.116b(a) & (b),' Subpart Kb exempts such storage tanks from the control requirements of the NSPS.
40 CFR S 60.110b(b).
Petitioners' claim regarding storage tank P-11 accordingly lacks merit, and their request for objection on this issue is denied.
Petitioners claim that all emission point sources in the VJ.i plant must meet phe Maximum Achievable Control Technology
("KACT") standards of the HCN.
Pet, of May 22 at 15-17.
On this basis, Petitioners argue that the permit incorrectly states that the VCM plant is not required to meet MACT standards for chlorine and hydrochloric acid and fails to address the emissions of other RAPS.
Id. at 16.
However, the requirements of the MCN apply only to chemical manufacturing process units that manufacture or use as a reactant certain chemicals.
40 CFR S 63.100(b).
The HCN does not apply to emissions of RAPS.that are emitted from units within the VCM facil;cy that do not meet the. HON's definition of a chemical manufacturing process unit.
Id.
Petitioners' claims regarding the 'pplication of the HON to'all a
emission point sources in the VCM plant are without merit.
Petitioners claim that the thermal oxidizers and scrubbers in the VCM plant fail to meet the 99 percent halogen halide and halogen reduction efficiency required by the HON, 40 CFR S 63.113 (c) (1) (i), ar ' that the' permit application does not contain the informat. n necessary to' evaluate scrubber performance.
Pet. of May 22 at 17-18; Pet, of May 30 at 3.
The VCM Permit correctly sets forth the required reduction efficiencies of the thermal oxidizer and scrubber.'
In addition, sufficient information to evaluate the efficiency of the thermal oxidizer and scrubbers was provided in the VCM Permit application, see VCM Plant Permit Application, Section 3, and in the VCM Permit, see Emissions Inventory Questionnaire for emission sources M4 and MS.
Petitioners' claims regarding the thermal oxidizer and scrubbers acco'rdingly do not provide a basis for objegting t,o the VCM Permit.
Petitioners allege that emission point M-13 in the VCM plant is a process vent subject to control under 40 CFR 5.63.113 rather than an Analyzer vent as contended by Shintech.
Pet, of May 22 at 18-19; Pet, of May 30 at 3.
Emission point M-13 was originally classified in the proposed VCM Permit as an analyzer The Shintech PVC Permit lists the recordkeeping provisions of 40 CFR S 60.116b(a) & (b) as applicable requirements.
The thermal oxidizer must achieve 98% destruction of total organic hazardous air pollutants, 40 CFR S 63.113 (a) (2).,
while the scrubber must achieve 99% removal of hydrogen halides and halogens (which include chlorine), 40 CFR S 63.113 (c) (1) (i).
9
.~v e n t that was not subject to regulation under the HON.
In the final VCM Permit, the emission point was re-classified as a group 2 process vent subject to monitoring, recordkeeping and reperting requirements under the HCN.
The information contained in the permit application, the permit and the petitions are insufficient to determine whether this emission point should be classified as a group 1 process vent (subject to monitoring, recordkeeping, reporting and control requirements) instead of a group 2 process vent, or whether'the emission point is part of a sampling system that should be regulated by the equipment leak provisions in 40 CFR Part 63, Subpart H.
Therefore, there is insufficient information to grant the petitions' claims that emission point M-13 in the VCM plant is a group 1 process vant subject to control requirements under 40 CFR S 63.113.
Petitioners have-not demonstrated that the emission point should be subject to these control requirements, and EPA is unable to make that determination with the,information presently available.
Accordingly, the petitions are denied on this basis.
However, EPA is requesting that LDEQ re-evaluate applicability of the HON to emission point M-13, to provide additional information as necessary to clarify the regulatory classification of the emission point, and to correct the VCM Permit if its current terms and conditions do not properly reflect the appropriate requirements of the HON.
Peti'tioners argue that the VCM Permit does not correctly apply the requirements of the HON to emissicas source M-15, which is listed as an " hcl Tank Scrubber Vent."
However, the requirements of the HON do not apply to the hcl tank which is a storage collection vessel for the scrubber system.
Although the HON mandates performance standards for some control devices,' the HON has no requirements for the individual components of a scrubber system, such as the HCL tank.
In addition, the tank does not meet the definition of a chemical manufacturing process unit and does not otherwise meet the applicability requirements of the HON becaUse' hcl is not a regulated pollutant under the HON:
Egg 40 CFR SS 63.100, 63.101 & 63.110.
Accordingly,'there is not a basis to object to the VCM Permit on the grounds raised by Petitioners.
-Petitioners also claim that the Shintech VCM Permit does r.ot contain the correct standard for the control of fugitive emissions from pumps and compressors set forth in 40 CFR S 63.164.
Pet, of May 22 at 21.
In fact, the VCM Permit correctly states that fugitive emissions are subject to 40 CFR S 63.160.
Section 63.160, in turn, establishes the applicability 8
For example, 40 CFR S 63.113 (c) (1) (i) requires that additional control devices such as scrubbers reduce halogen and halogen halide ~ emissions by 99 percent.
10
of the subpart H requirements, including the section 63.164 requirements, to pumps and compressors in operation 300 hours0.00347 days <br />0.0833 hours <br />4.960317e-4 weeks <br />1.1415e-4 months <br /> or more during the calendar year.
Thus, the correct standard for the centrol of fugitive emissions frcm pumps and compressors is incorporated in the VCM Permit.
Petitioners' claim on this issue is accordingl9 denied.
Petitioners. allege that the Shintech Permits fail to include the general duty rcquirements of section 112 (r) (1) of the Act to identify hazards that may result in an accidental release, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimi the consequences of an actual accidental release.
Pet. of May 22 at 33.
Petitioners argue that the June 21, 1999 compliance date for the chemical accident prevention regulations at 40 CFR Part 68 in no way excuses Shintech from its legal obligation to meet the general duty requirements of section 112 (r) (1), and the obligation to include such requirements in the Title V permits.
Thus, Petitioners contend that EPA must object to the Shintech Permits.
Id.
When EPA promulgated the final part 68 regulations governing the prevention of chemical accidents, the Agency made clear that compliance with the provisions of 40 CFR S 68.215 -- governing section 112(r) and Title V permit content requirements -- is suf ficient to satisfy the legal obligations of section 112(r) for
(
purposes of part 70.
Ega 61 f.gd. Eig 31668, 31688 (June 20, 1996); att Alan 60 E.id. Eng 13526, 13536 (March 13, 1995)
(proposed part 68 regulations).
The Shintech Permits satisfy the requirements of section 68.215 and therefore the requirements of section 112(r) for purposes of their Title V permits.
Petitioners' request that EPA object to the Shintech Permits for failure to meet the requirements of section 112 (r) (1) is therefore denied.'
' The' IPA does agree with Petitioners, however, that compliance with the requirements of part 68 does not relieve Shintech of its legal obligation to meet the general duty requiredents of section -112 (r) (1) of the Act to identify hazards that may result in an accidental release, to' design and maintata
.a. safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of an actual accidental release.
Section 112 (r) (1) remains a self-implementing requirement of the Act, and EPA expects and requires all covered sources to comply with the general dut'/
provisions of 112 (r) (1).
For this reason, EPA emphasizes that it would be improper for a permitting authority to grant a source a permit shield under part 70 identifying section 112 (r) (1) 's general duty requirements as not applicable to a source, if in fact the source (continued...)
11
(-
1 The Petitioners have also expressed concerns over the
" potential for accidents on trains, ships, and underground pipelines that will be transporting texte chemicals, notably ethylene dichloride and vinyl chloride monomer."
Pet. of May 22 at 31.
The risk management planning requirements of part 68 do not apply to ethylene dichloride because this substance is not a regulated toxic or flammable substance.
Egg 40 CFR S 68.130.
While vinyl chloride is not listed as a regulated toxic substance under part 68, it is listed as a regulated flammable substance.
Id.
However, section 112 (r) and part 68 apply to " stationary sources" and do not apply to accidents involving regulated substances in transportation, such as " trains, ships, and underground pipelines that (are) transporting chemicals."
- Egg, g.g, CAA S 112 (r) (2) (C) (stationary source definition); 59 Fed.
Egg at 4490 (explaining part 68 does not apply to transportation) ; H.R. Conf. Rep. No. 952, 101st Cong., 2d Sess.,
at 340 (1990) (Conferees explain that accident prevention provisions do not apply to transportation).
Thus, Petitioners have failed to demonstrate the permics' nonccmpliance with applicable requirements of the Act.
Petitioners' objection to the proposed permits on these grounds is therefore denied.
Petitioners further allege that the Shintech Permits do not adequately take into account the effect that fugitive emissions will have on the ambient air quality of St. James Parish, an area recently redesi nated as attainment for ozones Pet. of May 22 an 38-39; Pet, of May 30 at 3; gag 60 Eg:L Egg. 4 7280 (Sept. 12, 1995) (effective date Ncv. 13, 1995).
The EPA's review of the VOC and NO, emissions budget in the ozone maintenance plan for St. James Parish and the current and projected VOC and NO, inventories indicates that Shintech's VOC and NO, emissions will not adversely affect the attainment status of St. James Parish."
'(... continued) produces, proce.sses, handles or stores any regulated substances listed id part68 or any other extremely hazardous substance.
Egg 59 Ead. Egg 4478, 4481 (Jan. 31, 1994) (substances subject to section 112 (r) (1) are not limited to any specific list).
The LDEQ has*not granted Shintech a permit shield covering 112 (r) (1) general duty requirements, and the Act requires Shintech to comply with these requirements.
If a permitting authority has granted or does grant a permit shield to a covered source relating to section 112 (r) (1) general duty requirements, EPA may reopen or object to the Title V permit on that basis.
Total projected emissions of VOCs and NO, for 1998 for St. James Parish, incleding projected emissions from the Shintech facility, are 1,877 tons of VOCs and 8,660 tons' of NO..
Projected emissions accordingly fall below the emissions caps set forth in the maintenance plan of 2,029 tons of VOCs and 14,677 (continued...)
12 l
Therefore, the petitions to object on this basis are denied.
Petitioners also allege that because "Shintech submitted a revision to the part 70 permits on November 6, 1996," the L2EQ did net have time to review the changes before including them in the draft periit published on November 7, 1996.
Pet. of May 30 at 2.
Petitioners have failed to identify any particular statutory or regulatory basis for their allegation that this series of events serves as grounds for EPA to object to the permits.
Upon a permitting authority's release of a draft permit for public review, or a proposed permit for EPA review, the public and EPA have the opportunity to determine whether the permit complies with applicable requirements of the Act.
Petitioners.have not demonstrated why EPA's objection authority should extend to LDEQ's decision when to release the draft permit.
Accordingly, their petitions are denied with respect to this claim.
Petitioners argue that Shintech should be required to make a reasonable effort to apply " currently available control technology" to its emissions at the PVC plant even though EPA has not yet premulgated a MACT standard applicable to such facilicies.
Pet, of May 30 at 2-3.
Alternatively, Petitioners arg'.e that the proposed Shintech facil ty should not be built until federal MACT standards for PVC facilities are issued.
Id.
Finally, Petitioners imply that the Shintech PVC Permit fails to.
meet state "MACT" requirements.
Pet, of May 22 at 24.
Part 70 requires that a permit be reopened and revised when additional applicable requirements, such as a new MACT standard, become applicable to a major part 70 source with a remaining permit term of three or more years.
Egg generally 40 CFR S 70.7 (f) (1) (i).
However, Petitioners have failed to identify any applicable regulatory or statutory basis justifying the delay of construction of the PVC plant, or justifying objection to the PVC Permit, because the PVC MACT standard has not been promulgated." "Similarly, Petitioners have failed to justify the application of more stringent control technology than otherwise required by applicable requirements to emissions from the PVC plant.
Finally, Petitioners ' obj ections to state "MACT"
"(... continued) tons of NO,.
Under section 112(g) of the Act, however, if construction of the Chintech PVC facility commences after the effective date of a section 112(g) program in the State of Louisiana, then the facility would be required to meet a case-by-case MACT emission limitation.
Egg CAA S 112 (g) (2) ; 40 CFR S 63.42(a).
Application of the HON to the PVC facility could be considered by the State in such a case-by-case determination.
13 o
requirements in the PVC Permit relate to state toxies requirements that are state-only provisions, and thus are not federal applicable requirements that are properly within the scope of EPA's objection authority.
Ein CAA 5 505(b); 40 CFR S 70.B(c) & (d).
These arguments accordingly do not provide a basi.= to object to the PVC Permit.
Petitioners.also claim that neither the Shintech Permits nor the permit applications include a required statement that Shintech will meet applicable requirements that become effective during the permit term on a timely basis.
Pet. of May 30 at 2.
LAC 33:III.517.E.3 requires that *each application pertaining to a Part 70 source shall include...for applicable requirements that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis...."
Eia also 40 CFR S 70.5 (c) (8) (iii) (B) (requiring same statement in part 70 permit applications).
The EPA notes that such statements were included in Shintech's operating permit applications', see Section.2 of Shintech's Application, although Petiticners are correct in noting that the Shintech Permits do not include this statement.
However, Petitioners failed to raise these objections to the draft Shintech Permits during the public comment period provided for by LDEQ, and there is no indication.that it was impracticabl-to raise such objections within this period, nor did the grounds for these objections.erise after the public comment period.
Egg 40 CFR S 70. 8 (d) ; LAC 33:III.533 E.2.
Therefore, Petitioners may not base a petition to EPA on these grounds, ii, and their petition is hereby' denied with respect to these claims.
The EPA notes, however, that 40 CFR S 70.6 (c) (3) requires part 70 permits to. include this statement as a permit condition, as part of each permit's schedule of compliance.
Egg also 40 CFR S 70.5 (c) (8) (iii) (B).
The EPA regulations at 40 CFR.
SS 70.8 (c) (1) and 70.8(d) provide for objection to an operating permit that is not in compliance with the requirements of part
- 70..Similarly;'the Louisiana operating permit regulations provide that EPA may object to the issuance of any proposed permit pertaining to a part 70 source if "the permit would not result in' compliance with federally applicable requirements or with the requirements of the approved Louisiana Part 70 pr9 gram or with 40 CFR part 70."
LAC 33:III.533.D.1.a.
The public may petition EPA to object to a permit on this same basis.
LAC 33:III.533.E.1.
As noted, the Shintech Permits do not include a statement that Shintech will meet applicable requirements that become effective during the permit term on a timely basis, nor do the permits incorporate such a statement by reference.
Accordingly.
the Shintech Permits do not comply with 40 CFR S 70.6 (c) (3),
which requires part 70 permits such as the Shintech Permits to 14
contain such a statement."
Therefore, these omissions have been identified in the list of technical deficiencies that EPA has discussed with LDEQ by letter, and for which LDEQ has sta:ed its intention to reopen the permits for cause.
Petitioners claim that :he proposed permit for the PVC plant showed lower emissions of vinyl chloride monomer than were sta:ed in the draft permit or the application.
Pet. of May 30 at 6..
Shintech amended its calculations of vinyl chloride emissions in order to comply with state requirements that are more stringent than federal standards.
The change in the proposed permit accordingly was to correct an error in the dratt permit and application and does not form the basis for an objection.
In addition, Petitioners claim that the lower VCM emissions rates were not included in the PSD portion of the proposed permit or in the Emissions Inventory Questionnaire for the applicable emissions sources.
Id. at 7.
However, the final PSD Permit reflects the lower emissions rate.
Therefore, Petitioners' claims do not warrant an objection to the PVC Permit.
Petitioners claim that the PSD Permit and VCM Permit do not appropriately treat fugitive emissions of hydrochloric acid and chlorine.
Pet, of May 30 at 7.
First, however, the PSD provisions of.the Art do not apply directly to hazardous air pollutants listed under section 112, including hydrochloric acid and chlorine.
San CAA S 112 (b) (1) & (b) (6).
Therefore, fugitiv.e emissions of hydrochloric acid and chlorine are not required to be regulated directly under PSD.
Id.; agg also CAA S 165 (a).
Moreover, Petitioners are incorrect in their allegation that 40 CFR Part 63, Subpart H covers fugitive emissions of hydrochloric acid and chlorins.
San Pet. of May 30 at 7.
This rule regulates only the list of organic RAPS identified in 40 CFR Part 63, Subpart F (Table 2).
Sig Ala2 59 End. Egg 19568 (April 22, 1994).
Hydrochloric acid and chlorine are not included on this list and are not regulated by the equipment leak provisions in 40 2
Beca se of the particular way in which Louisianas regulations are written,.whereby EPA may object to a proposed part 70 permit if it would not result in compliance with "the requirements of the approved Louisiana Part 70 program or with 40 CFR part 70," there may be instances in which an irreconcilable conflict exists between the approved state regulations and federal regulations, and it would not be possible for a permit to meet both set.s of regulations.
Here, however, there is no such conflict: while the Louisiana part 70 program does not expressly require that permits contain the statement in question, neither does it prohibit inclusion of the statement, and the fedaral part 70 regulations do require the statement in permits.
Thus, the Shintech Permits must satisfy the requirements of the approved Louisiana part 70 program and 40 CFR part 70 by including the statement.
13 i
CFR Par: 63, Subpar: H.
Id.
Finally, the provisions of Subpar H apply only to a specified list of equipmen: " intended to operate in organic hazardous air pollutant service 300 hours0.00347 days <br />0.0833 hours <br />4.960317e-4 weeks <br />1.1415e-4 months <br /> or more during the calender year...."
4 0 CFR S 63.160 (a).
The final VCM Perm.i appropriately reflects this applicabili:y requirement.
Therefore, Petitioners are mistaken in their claims that the PSD Permit and the VCM Permit do not treat hydrochloric acid and chlorine fugitive emissions correctly.
Thus, the petition is denied with respect to these issues.
Petitioners also argue that Shintech voluntarily reduced emissions at specific emissions points and that Title V does not allow for such voluntary reductions.
Pet. of May 30 at 7-8.
Petitioners reference a letter written by Shintech to LDEQ, in which Petitioners allege that Shintech agreed to greatly reduce emissions at specific emission points th'roughout the plant, but that these reductions would be voluntary.
Finally / Petitioners allege that Shintech has been allowed to make these voluntary j
emissions reductions in lieu of meeting applicable MACT standards.
Pet. of May 30 at 7.
The referenced letter addressed changes to six emission points within bot' the VCM plant and the PVC plant.
In the letter, Shintech 1; forms the LDEQ that the company would voluntarily reduce emissions at points P-1 and P-2 (the scrubbers) in the Pvc plant from 50 ppm vinyl chloride to 35 ppm' vinyl chloride on a quarterly rolling average.
Upon final permit issuance, the LDEQ required this level of emissions reduction as an enforceable emission limit in the final permit, consistent with comments made during the public commer.t period by Petitioners.
Accordingly, as an enforceable emission limit, this permit term is not a voluntary limit in the PVC Permit.
The second issue raised in Shintech's letter to the LDEQ requested a correction of a typographical error on emission points M-4 and E-5 in the VCM plant.
The required emission teduction was correctly revised from 95% reduction to 99%
reduction, in accordance with 40 CFR S 63.113 (c) (1) (i).
The final area addressed in the Shintech letter concerned emission points M-12 and M-13 in the VCM plant.
Shintech states that emissions from these vents will be directed to either the thermal oxiditers or activated carbon beds.
As addressed earlier in this Order, supra at 9-10, emission points M-12 and M-13 have been classified as process vent 2's, and gas streams from these emission points do not currently requirc control under 40 CFR Part 63, Subpart G; however, EPA is requesting that LDEQ re-evaluate the control requirements on these emission points and correct the VCM Permit if the current terms and conditions do not properly reflect those requirements.
None of the three changes to the permits discussed in the 16
referencid letter allows Shintech to make voluntary emissions reductions in lieu of meeting applicable MACT requirements.
Moreover, should-Shintech voluntarily agree to reduce emissions beycnd that required by federal or state law, nothing in Title v would prevent such action and, indeed, such steps should be encouraged.
The petitions, accordingly, are denied on this basis.
Petitioners' allege in a July 29, 1997 petition that LDEQ failed.co follow its own operating permit regulations, by making substantial changes to the proposed Shintech Permits submitted to EPA on February 18 as the result of consideration of public comments, and then-issuing the final Shintech Permits without,
first sending the changes to EPA as required by LAC 33:III.533.
Pet. of July 29 at 1-2.
Petitioners allege further that rather than issuing the final permits -- LDEQ should have submitted. corrected proposed permits to EPA for an, additional 45-day EPA review period, followed by an additional public petition
_ period.
Id.
Petitioners argue that the Shintech Permits should therefore be revoked, rather than reopened, because the permits were not issued in accordance with LAC 33:III.533 in the first instance.
Id at-2.
Finally, Petitioners argue that section 505 (a) (1) (B) of the Act required that LDEQ submit changes to the proposed Shintech Permits to EPA,foi review.
Id.
Section 533.B.3 of the Louisiana operating permic regulations requires that "[t]he permitting authority shall promptly provide to EPA notice of any intended changes to a proposed permit resulting from consideration of public comment...."
During the period before final issuance of the Shintech Permits, LDEQ did provile prompt notice to EPA's Region VI.of intended changes to the proposed Shintech Permits.
Such notice was provided by LDEQ in conversations with Region VI staff, which appears to-satisfy-the notice requirement of LAC 33:III.533.B.3.
In any event, LDEQ further provided the changes to ~ the permits to Region VI in writing.
In these instances, EPA is aware that.LDEQ did satisfy the requirements of LAC 33:III.533.B.3.
Petitioners have failed to offer information sufficient to demonstrate that there are other instances in which LDEQ faLled to comply with section 533.B.3.
Accordingly, the petition is hereby denied on this issue.
Petitioners suggest further that LDEQ issued the final Shintech Permits without properly awaiting the completion of EPA's-45-day review period, in violation of sections 533.B and' 533.C of the Louisiana regulations.
However, these regulations allow EPA to notify LDEQ prior to the close of the 45-day review period ~that no objection will be made to the intended changes.
Ega, LAC 33:III.533.C.2.
-In.such a-situation, LDEQ may= issue a final. permit reflecting such changes prior to the end of EPA's 45-day review period.
Id.
As discussed above, LDEQ provided prompt notice to EPA's Region VI of intended changes to the 17
Shintech Permits, as well as the changes themselves, and Region VI communicated with LDEQ that EPA would not object to the changes presented by LDEC.
Therefore, EPA effectively waived the remainder of its 45-day review period in these instances, as provided for under LAC 33:III.533.C.2.
Accordingly, LOEQ appears to have follo'ed the requirements of section 533 in this respect, w
and Petitioners have not demonstrated grounds to reopen or revoke the Shintech Permits on this basis.
Finally, it is not necessary to resolve Petitioners' argument that section 505 (a) (1) (B) of the Act requires permitting authvrities to submit each change to a proposed permit no matter how minor -- to EPA for a new 45-day review period, followed by a new 60-day public petition period.
Egg Pet, of July 29 at 2-3.
As noted above and as far as EPA is aware, LCEQ did submit each change to the proposed Shintech Parmits to EPA for review.
Therefore, even accepting Petitioners.' argument about the requirements of section 505 (a) (1) (B) as true for purposes of.their pe.ition, Petitioners have failed to offer information sufficien to demonstrate that LDEQ failed to comply with section 505 (a) (1) (2).
Petitioners' request that EPA object to or revoke the Shintech Permits for this reason is therefore denied.
Finally, Petitioners allege generally that the Shintech Permits are unenforceable as written and that it is the duty of -
EPA to review the permits and disclose all inconsistencies.
- Pet, of May 22 at 28-29.
Moreover, Petitioners advance the general claim that the VCM and PVC Permits contain inconsistencies and inaccuracies too numerous to enumerate.
Id at 22.
In addition, Petitionera argue as a general proposition that EPA should object to the Shintech Permits on the basis of the LDEQ's allegedly ineffective enforcement record.
Id. at 28.
Petitioners mischaracterize the scope of EPA's duty with respect to the review of operating permits issued under Title V.
In a petition' dction such as this under section 505 (b) (2) of the Act, it is the responsibility of a petitioner to demonstrate to the Agency that the terms of a permit, including any alleged inconsistencies in those terms, are not in compliance with the requirements of the Act.
Petitioners have failed to make such a demonstration in the instances addressed above or in any other instance, and in the absence of such a demonstration as to at least some instance of inconsistent or unenforceable permit terms, EPA has no generalized duty to review the permits and to determine and rectify all inaccuracies and inconsistencies.
In addition, with respect to Petitioners' allegations that the permits are unenforceable, EPA notes that compliance with the terms of the Shintech Permits does not shield Shintech'from an action to enforce any applicable federal requirements.
In sum, the general allegations raised by Petitioner _ above 18 l
l
do not provide a specific enough basis for objection to meet a petitioner's burden to demonstrate that provisions of a.. permit fail to comply with applicable requirem.ents of the Act.
Accordingly, the peti icns are denied for purpcses of the general allegations made by Petitioners.
Although the Agency is denying Petitioners' requests to object to the Shtntech Permits on the grounds discussed above in Section III s of this Order, in the course of reviewing the Shinnech Permits in response to the petitions, EPA has identified specific technical deficiencies in the permits which the Agency has discussed with LDEQ.
The LDEQ has expressed its intention to reopen each of the Shintech Permits for cause to remedy the deficiencies identified by EPA.
IV.
CONCLUSION For the reasons set forth above, I partially grant the May 22 petition of the Tulane Environmental Law Clinic on behalf of the Petitioners, joined by Greenpeace, requesting that the Agency object to the Shintech Permits for a PVC complex, and I hereby ob]ect to the Shintech VCM Permit.
I deny the remainder of the May 22 petition from the Tulane, Environmental Law C'.inic, and the May 30 and July 29 petitions of LEAN and St. James Citizens for Jobs and the Environment.
This disposition of the issues raised-by Petitioners is not intended to address the substance of Petitioners' environmental justice Title VI claims regarding the Shintech Permits.
These claims will be addressed separately by EPA under its Title VI process.
As the only specific example of an alleged inconsistency, Petitioners note thA,t while the Shintech VCM Permit correctly states at one point that emission sources M-12, M-13, and M-14 are subject to the HON, the remainder of the permit statest' hat'these emission sources do not require control technology.
These emission sources are currently classified in the VCM Permit as group 2 vents under the HON.
These vents,
. accordingly, are not subject to the control technology requiremente of the HON.
San 40 CFR S 63.113; gag also supra at 9-10 & 16.
however, as 4.ndicated earlier, EPA is requesting that LDEQ re-evaluate applicability of the HON to these emission points.
Egg supra at 10.
As to the other general objection by Petitioners, while Title V and part 70 require permitting authorities such as LDEQ to have adequate enforcement authority to enforce permits and assure compliance with the Act, see generally CAA 5 502 (b) (5) &
40 CFR S 70.11, Petitioners have failed to support their allegations of enforcement deficiencies sufficiently to demonstrate the Shintech Permics' noncompliance with applicable requirements of the Act.
19
Pursuant to sections 505(b) and 505 (e) of the Clean Air Act and 40 CFR 55 70.7(g) and 70.8(d), the LDEQ shall have 90 days from receipt of this Order to resolve the objection identified in Section III.A above, and to submit a proposed determination of termination, modification, or revocation and reissuance of the Shintech VCM Permit in accordance with this objection.
SEP I C $$7 s
p._
Date Carol'M. Browner Administrator e
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ATTACHNENT EPA has identined the following de6ciencies in the permits issued to Shintech. Inc. and its AHiliates ("Shintech") for the construction and operation of a chlor alkali production plant, polyvinyl chlonde ("P.VC") production plant and vinyl chloride monomer ("VCM") production plant. L'pon reopening the Shintech permits to address these de6ciencies, proceedings to reopen, revise, and reissue a permit must follow the same procedures as apply to initial permit issuatee, including an opportunity for public comment and a hearing on the issues that are addressed in the reopening. See LAC 33111.529 A.2 & 40 CFR } 70.7(f)(2).
General Comments
- 1. The permits are structured to include anticipated Snal emission points, but does not include all
" emissions points" as denned by applicable regulations. For example, process vents subject to the HON which are intended to be on closed vent systems routed to control devices such as the thermal oxidizers are not specifically listed in the VCM Permit along with the applicable requirements for those emission points. Another example is the failure of the PVC Permits to identify the gas streams from the distillation operations in the vinyl chloride recovery unit.
Notwithstanding the apparent intent that these " emission points" (process vents) be routed to control devices as required by applicable rules such as the HON, such requirements are not clear in the permits. As such, potential emission points are not explicitly covered by the permits, and additional applicable requirements, beyond the requirement to route emissions from process vents to a control device, are not included. Thus, the permits do not include provisions to assure compliance with all applicable requirements as required by 40 CFR % 70. l(b). The permits must be modified to include all emission points and the applicable requirements for those emission points.
- 2. Similarly, the applicability of many of the regulations at issue in the permits should not be based on final release or discharge points. The requirements of the regulations must be applied to the individual emission points, units, or processes as defined in the applicable regulations. All emission points and their applicable requirements must be identified regardless of where emissions are routed prior to release For example, the cracking furnaces must be listed as process vents subject to the HON and 40 CFR Part 61 Subpart F, with the thermal oxidizer and scnbber identified as the control equipment.
- 3. The method of compliance with the opacity limitations and the frequency of monitoring must be stated in the permit. Egg 40 CFR $ 70.6(a)(3)(permit must contain all emissions monitoring and test methods required under the applicable requirement; where applicable requirements do not require petiodic testing or instrumental or noninstmmental monitoring, permit must contain periodic monitoring sufficient to yield reliable data from the relevant time period.that are representative of the source's compliance with the permit).
- 4. The Benzene Waste Operations NESHAP,40 CFR Part 6i Subpart FF, is an applicable I
.~
requirement and must be included in the permits. 5ts 40 CFR l 70 6(a)( t).
. 5? The permits must be modi 5ed to_ identify relief valves along with a low level citation to the
_ applicable regulations of 40 CFR Part 61 Subpart F (and the HON where applicable) 51s 40 CFR j _70 6(a)(1).
- 6. Transfers of process streams between plants are not clearly identified in the permits, For example, the PVC Plant Permit does not identify individual process wastewater streams generated from that facility and routed to the wastewater treatment train and the thermal oxidizers and scrubbers in the VChi plant. Such clarity is fundamental to determining whether all applicable requirements have been incorporated as required by 40 CFR l 701(b).
- 7. Table 1 in each of the permits must be modified to consistently identify those requirements which apply, those from which the unit is exempt, and thosiwhich do not apply. For example, Table 1 in the PVC Plant Permit identifies LAC 33 III Chapter 21 as an applicable requirement for emission points P 1 and P 2, but Table 2 of the permit states that these points meet exemption criteria. Such clarity is fundamental to determining whether all applicable requirements have been incorporated as required by 40 CFR } 70.lfb).
- 8. The permits contain insufficient detail. Part 70 requires that a source submit detailed information regarding emissions, including an identification and description of points of emission, the requirements that apply to that point, and appropriate compliance assurance provisions 40,
CFR } 70.5(c) The requirement in the HON that sources submit an implementation plan imposes a similar requirement. Sss 40 CFR l 63.151(c). In lieu of submitting an implementation plan, however, a new source subject to the HON may elect to provide the required information with its
. application for a Title V permit. M. However, Shintech submitted neither the implementation plan nor the specified information with its operating permit application. Because neither the HON implementation plan nor the required information was submitted, the permits contains an
, inadequate level of detail.
- 9. The permits must identify the General Provisions of 40 CFR Parts 60, 61, and 63 as applicable requirements.
i
- 10. All state only requirements should be clearly identified as such. 53s LAC'33:III_ Chapter 59.
- 11. All B ACT limitations must be expressed in enforceable terms in the operating permits. For -
example, the B ACT limit for NOx emissions from the boilers in the Chlor Alkali Plant must be
- included as a specific emission l_ imitation in the B ACT. Compliance Niethod/ Provision established by Table 2. 40 CFR } 70.6(a)(1) requires that permits centain applicable emission limitation.
Such emission limitations must be unambiguous. In addition, the NOx emission limits expressed in the permits must be expressed in Ibs of NOx per million BTU for NOx emitting units throughout the facility, Thus, for example, Table 2 of the VChi permit must contain an emission limit of 0 057 lbs of NOx per million BTU for the cracking fumaces.
2
- 12. The last sentence in the Srst section of the General Conditions, which is a part of all the operating permits and the PSD permit, appears to indicate that if emissions are greater than those allowed under the permit, then the source may apply for a permit modi 6 cation as opposed to implementing measures to bring the source b compliance. The permit must be clear that application for a permit modification, while permissible, should not be suggested as the means of attaining compliance in the event that " emissions are determined to be greater than those allowed in the permit or if proposed control measures and/or equipment are not installed or do not perform according to design etTiciency." An application for a modification does not negate non-compliance with existing permit terms. This provision should be modified so that it does not prescribc an application for permit modification as the means to rectify exceedences of emissions limits or other violati2ns of permit terms.
- 13. The permits should include, for applicable requirements that will become etTective during the permit term, a statement that the source will meet such requirements on a timely basis. Sss 40 CFR }Q 70.6(c)(3) & 70 5(c)(8)(iii)(B). A statement that the source will meet in a timely manner applicable requirements that become etTective during the permit term will suffice, unless a more detailed schedule is expressly required by an applicable requirement. [d.
Chlor-Alkall Plant Permit
- 1. The permit does not require periodic monitoring for the cooling towers. Although there is no,
insignificant activity exemption for cooling towers in the Louisiana regulations, the LAC does allow a source to obtain an exemption by previously submitting a request to the Louisiana Department of Environmental Quality ("LDEQ"). If such an exemption has been obtained, it must be noted in the permit. If an exemption has not been obtained, the permit must require periodic monitoring of the cooling towers. Sss 40 CFR } 70.6(a)(3).
VCM Plant Permit
- 1. The permit identifies'40 CFR Q 61.60 as an applicable requirement for poim source M 16. Sss VCM Permit, Table 2. However, the cited provision establishes the criteria for applicability of 40 CFR Part 61 Subpart F (Vinyl Chloride NESHAP) rather than the licable requirements of the standard. The permit must be modified to correctly cite the applicabie emissions standards, monitoring, and recordkeeping and reporting requirements. Sss 40 CFR {Q 70.6 (a)(1) & (3).
- 2. The permit contains a number of mistakes with respect to the Process Wastewater Streams.
First, the permit identifies the applicable compliance method for the Process Wastewater Streams as 40 CFR jQ 63.160(b) & (c) and 63.110(d) & (f)(1)-(3). Sss VCM Petmit, Table 2. However, the permit must include lower level citations to 40 CFR { 63.132-63.149 to identify the applicable recordkeeping and reporting requirements. Sss 40 CFR Q 70.6(a)(3)(permit must contain all required emissions monitoring and analysis or test procedures and incorporate all 3
applicable recordkeeping and reporting requirements) Moreover, the permit incorrectly states that the HON will be used to demonstrate compliance with both the HON and 40 CFR Part 61 Subpart F (Vinyl Chloride NESHAP). The permit must include terms demonstrating compliance with both standards as each standard imposes independent requirements Finally, both standards require that each wastewater stream be identified as well as the applicable control requirements.
- 3. The permit identifies the applicable compliance method for the Oxyhydrochlorination Vent and Direct Chlorination. Vent as 40 CFR }l 63.160(b) & (c). 6 VCM Permit, Table 2. However,
. the cited provisions establish the criteria for applicability of 40 CFR Part 63 Subpart H (HON Equipment Leaks Standard) rather than the applicable requirements of the standard. As discussed above, the permit must be modi 5ed to correctly cite the applicable emissions standards,
. monitoring, and recordkeeping and reporting requirements. Ets 40 CFR ll 70.6 (a)(1) & (3).
- 4. The permit contains an apparent ty ographical error with respect to the Oxyhydrochlorination Vent, the Direct Chlorination Vent, the EDC Purification Vent, and the Loading Vents as there is no 40 CFR } 61.113. Ett VCM Permit, Table 2.
- 5. The permit indicates that 40 CFR j 63.160 (b) & (c) apply to the thermal oxidizers, M-4 and M 5. Egg VCM Permit, Table 1. However,40 CFR % 63.160(b) & (c) concern equipment leak requirements, provisions which should not be applicable to thermal oxidizers.
6 The permit fails to specify that 40 CFR Part 63 Subparts F & G are applicable to the wastewater streams. Ett VCM Permit, Table 1.
- 7. The permit incorrectly identifies the monitoring times for the scrubber liquid flow and pH as once every four hours. Ett VCM Permit, Specific Conditions. Appropriate nionitoring times range from continuous to at least once every 15 minutes. See e n 40 CFR { 63.Il4(a)(4). The -
gas flowrate and liquid to gas ratio in the scrubber in the VCM plant are also required to be monitored and recorded and must be included in the permit with the reference to the citation indicating the monitoring methods. Table 3 should be amended to include this information. The scrubber is also required to continuously monitor the vinyl chloride concentration per 40 CFR Part 61 Subp' art F (Vidyt Chlo' ride NESHAP), and though the permit includes the 10 ppm limit, it must also specify that it is for a 3-hour average.
- 8. The permit fails to include citations to the applicable monitoring, recordkeeping, and reporting requirements for the EDC storage vessels. Sss VCM permit, Table 2.
- 9. The permit language must be clerified to indicate that both the Vinyl Chloride NESHAP and the HON apply to the thermal oxidizer and scrubber. Egg VCM Permit, Table 2. The current reference in the permit to 40 CFR { 63.110(f) in Table 1 is not sufficient to clearly indicate that both rules apply.
- 10. The permit lists the thermal oxidizer and scrubber with a merged entry. Ett VCM permit, 4
8 Table 2 Table 2 shou d be revised to clarify either that emissions points M-4 and 515 are a combination of the ther nal oxidizer and scrubber or to identify each unit separately. In addition, the 98% emission limit should be clearly specified as "98 % by weight of total organic HAP emissions," and the 9994 removal requirement should be clearly specified as " reduce halogen halides and halogens by 99% or reduce the outlet mass of total halogen halides and halogens to less than 0.45 kilograms per hour, whichever is less stringent." 40 CFR j 63113.
11 The reporting requir$nents in the permit are inconsistent. General Condinon K of the permit requires semi annual reporting while the specific conditions of the permit require an annual report of the hours that the scrubbers operate out of range. The permit must be corrected to reference the correct reporting period of six months.
- 12. A requirement to measure the temperature in the incinerator and record a reading at least once every 15 minutes should be added to the permit. ing 40 CFR ) 63.114(a)(1).
- 13. The reference in Table 3 of the PVC permit to 40 CFR } 60.64 should be to 40 CFR ) 61.64.
- 14. The permit and the permit application are unclear whether the emission points M 12 and
' M 13 are process vents under the definitions of the HON and 40 CFR Pan 60 Subpans III; NNN, and RRR or are sampling connection systenis under the definiti'ons of the HON (Subpart H) and 40 ',.FR Part 60 Subpart VV Addit.ional information needs to be obtained to determine whether these emission points are diversions of part of the process vents from the reactors and/or distillation operations or if these emission points are from the sample purge flow for these analyzers. The applicability of the control and monitoring requirements of 40 CFR Pan 61 Subpart F (Vinyl Chloride NESHAP) should also be reflected in the permit.
- 15. The applicability of the sampling provisions of 40 CFR Part 61 Subpart F (V'myl Chloride NESHAP) to emission points should be evaluated, and the permit revised to explicitly include a low level citation to the Subpart F requirements, as appropriate.
,. g.
' PVC. Plant Permit
- 1. Although.the permit indicates that VCM concentration will be monitored at' emission point P-
~
15, ang PVC Permit, Table 3, the permit does not indicate that records are required to be kept.
- Egg 40 CFR } 70.6(a)(3).
- 2. Instead ofincludmg just the monomer recovery system in the PVC plant, the permit must also
' list the No. I Gas Holder, the Knockout Tank, and the No. 2 Gas Holder and must require these pieces _of equipment to be subject to the Vinyl Chloride NESHAP requirements. Egg 40 CFR )
61.64(c) and 40 CFR~ ) 70.6(a)(1).
~
3a The centrifuge, dryer, separator, and delivery silos must be included in the permit as sources 5
- -. - - - -. _. - -.. ~
1
- following the stnpper, with the Vinyl Chloride NESHAP as the applicable requirements and with the equipment subject to the vinyl chloride concentration standard and the monitoring, recordkeeping and reporting requirements of the Vinyl Chloride NESHAP 40 CFR } 6164(e) and 40 CFR j 70 6(a)(1).
- 4. The permit is unciear as to whether emission point P-15 and the PVC reactors refer to the same emission point. Sss.PVC Permit, Table 2.
5 The permit must identify how a " daily" average is obtained (how many times a day v,ill the concentration be monitored) for emission points P-1 and P 2. In addition, P 1 and P 2 are also subject to the 10 ppm VCM concentration requirement of 40 CFR Part 61 Subpan F. This standard, as well as the applicable monitoring, recordkeeping and reponing requirements must be included in the permit. Sgt 0 CFR } 70.6(a)(1) and (3).
4
- 6. The statement in the permit with respect to emission point P 16 that leaksr will be repaired before the end of the next process unit shutdown, sts PVC Permit, Table 2, is inconsistent with the repair requirements of the HON, which is stated as the requirement to be met, regardless of applicability. This inconsistency must be corrected.
- 7. The citation to 40 CFR } 61.240 in Table 2 is incorrect. The correct citation is to the applicable emissians standards, monitoring and recordkeeping and reporting requirements of 40 CFR Psrt 61 Subpart V S. The permit fails to include the requirement that tank dimension records must be kept for emission point P-11. Sss 40 CFR } 60.I16b.
- 9. A 99 99% particulate removal requirement for the crubbers and silos needs to be added to the permit, with B ACT identined as the applicable regulation. In addition, continuous monitoring and performance test requirements need to be added to demonstrate compliance with this limit.
- 10. The Vinyl Chloride NESHAP is identified as an applicable requirement in Tables 1 and 2 for the Process Wastewater Streams, but no reference is made to the applicable wastewater monitoring, recordkeeping and requirements. These should be identified and addressed in Tables 3 and 4, as appropriate.
- 11. The slurry stripper should be identified with appropriate emission standards and monitoring, recordkeeping and reporting requirements.
PSD Issues
- 1. The State should include for each emission unit its NOx limits in Ibs NOx/mm BTU as PSD permit limits to specify B ACT as an emission limitation for each applicable emission point and 6
have the applicable averaging time and source test method for each of the B ACT limits listed in the pe:mit.
2 The State should define the averaging time associated with the maximum Ib/hr NOx limits contained in the PSD permit as well as the applicable compliance methods or testing and recordkeeping anocia'ted with those limits This is necessary to ensure that the source complies with both the short and long term emission limits
- 3. The operating permit should clearly outline the compliance method, NOx B ACT limit, and the reporting requirements of the PSD permit. Consequently the 0.05 lb/mm BTU BACT emission limit, in addition to the requisite technology, should be included in Table 2. This comment applies to all combustion units subject to NOx BACT requirements.
- 4. Where particulate control devices are utilized, the BACT emission limits for PM/Phl10 should be written in grains /dsef'as well as lbs/hr to ensure that B ACT is achieved at all cperating levels.
For these emission points, the State should require the source to verify initial and subsequent compliance with PM/PM10 emission limits with a stack test. In addition, appropriate periodic monitoring of operating parameters should also be required to assure continuous compliance with th: PM/PM10 emission limits. Sss 40 CFR } 70.6 (a)(3)(i)(B). An opacity limit is not an acceptable method of assuring compliance, continuous or otherwise, with a PM/PM10 B ACT control limit cf 99.99% or a r tass emission limit of 0.04 grains /dscf.
- 5. The State should en'sure that a B ACT analysis for the four cooling towers is performed and have the appropriate emission limit and compliance testing for those emission limits in the permit.
- 6. Any VOC emission usociated with wastewater treatment p.ior to the biological treatment unit must be subject to GACT and must be included in the permit.
- 7. The state's B ACT analysis for PM/PM10 lacks technical data supporting 99.99% removal efficiency as the most stringent control option available for the units in question. A baghouse is generally considered the most stringent control device for particulates. If the state concludes that cyclones can achieve equal or greater efficiency, there must be technical data supporting this analysis, and the analycis of collection efficiency should take particle size into account. (Test data from a similar, source can be used to verify the projected control level.)
- 8. LDEQ determined thtt compliance with LAC 33:III.5109 satisfied B ACT for the sctubbers (P-I and P-2). Consequemly, the PSD permit includes the requirement that VCM in the PVC slurry be stripped to a quarterly average of < 35 ppmw; however, the PSD permit does not include the requirement that the daily average be < 150 ppmw. Sss VCM Permit, Table 2. This requirement should be added to the permit.
- 9. Specific Condition 4 of the PSD permit provides, 7
Permittee shall continuously monitor NOx emissions from the Boilers A, B, C, D, Emission Points C-4, C 5, C-6, C-7, as required by New Source Performance Standards,40'CFR 60, Subpart Db.
AAer the initial stack test, permittee may apply for alternative monitoring of operating conditions.
This provision suggests that parametric monitoring could be substituted for emissions monitoring which is not permissible in this case. The last three words from the above permit provision ("of operating conditions") should be deleted and replaced with " emissions."
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.4 DESONA then initiated an amparo in federal court, in which it claimed that it had been
- deprived of its constitutional rights. The federal court also rejected DESONA's legal challenge.
We are therefore faced with a situation in which the NAFTA violations alleged by the claimants involve an act by the municipality that has already been reviewed by three Mexican tribunals, in:luding a federal constitutional court, each of which determined
. that the municipality was justified in annulling the concession.
It is well established in international law that international tribunals do not act as appellate courts that review decisions of national courts. Mexico will direct the Tribunal to decisions and the writings of learned publicists which hold that, of all of the acts of national officials that international tribunals can review, they are most reluctant to interfere with acts of judicial authorities.
Standino issue NAFTA distinguishes between two types of claims, Article 1116 and-Article 1117 claims. The former are claims made by investors on their own behalf. The latter are claims made on behalf of an enterprise, if it is a claim on behalf of an enterprise, it would be necessary for the enterprise to demonstrate its desire that a claim indeed be advanced in its name and on its behalf.
NAFTA Article 1121 tnakes this is a condition precedent to submission of a claim to arbitration. This is typically done by director's resolutions. On November, 15,1996, this was apparently done by the three individuals, apparently acting as the Board of Directors.
If it is a claim on behalf of individual investors, then it is necessary for them to demonstrate the nature and extent of their interests in the enterprise.
This is not merely a matter of form. It is a crucial requirement for the fair and proper conduct of the case. Important issues, such as whether there is actual authority to commence proceedings on behalf of an enterprise or on behalf of the investors, whether the act has caused loss to the shareholders or to the company, and the quantum of.
damages, all flow from whether this is an Article 1116 or 1117 claim.
In Mexico's view, it is necessary for the Tribunal to establish which type of claim is being advanced. I will refer you to the relevant parts of the pleadings to demonstrate the problem.
2
- - _-___ =__ _
First, the Amended Notice of Intent to Submit a Claim, undated, asserts at the second paragraph, that the claim is being brought under Article 1117, in other words, on behalf of DESONA.
Yet in paragraph 1 of the Notice of Claim, dated March 10,1997, three natural persons are identified as claimants: Robert Azinian, Kenneth Davitian, and Ellen Baca.
The Tribunal should require evidence of the citizenship or permanent residency of each of the claimants, and the dates on which they became shareholders in DESONA.
A: paragraph 9 of the Notice of Claim, it is asserted that DESONA was incorporated under the laws of Mexico on November 4,1992, as evidenced in public deed no.
6,477, granted bufore Notary Public no. 7. Paragraph 9 states: quote "the owners and operators of DESONA were the Claimants herein as well as its general director, Ariel Goldenstein." unquote.
I refer the Tribunal to twc public deeds, both oddly with the same number, dated November 4,1992. The first, which I shall call DESONA A, is evidenced by public deed no. 6,477, lists as shareholders a U.S. citizen, Robert Azinian; Ariel Goldenstein, wM is a Brazilian or Argentinean; and two Mexican nationals: Jose Humberto Pulido Garcia and Epifanio Gomez Martinez, Contrary to the allegation in paragraph 9, the claimants Ellen Baca and Kenneth Davitian are also not listed.
The second, which I shall call DESONA.B. is evidenced by public deed no. 6,477. It lists as shareholders two U.S. persons, Robert Azinhn and Kenneth Davitian; and Ariel Goldenstein, a Brazilian or Argentinean. I note that, contrary to the allegation in paragraph 9, that the claimant Ellen Baca is not listed as a shareholder.
There are further complications. The concession was presented for approval by the municipal council on November 4,1992. It was represented to the council on that date that DESONA would actually be formed by four companies with over 40 years' experience in waste management: three U.S. companies, Bryan Stirrat & Associates, Global Waste Industries, and Sunlaw Energy Corporation; and one Mexican company:
Mexican Diesel Electromotive. However, the deeds establishing DESONA A and DESONA B were registered shortly before the municipal council met on November 4; consequently, the representations made to the council were misleading, and were never cured.
In fact, Messrs. Goldenstein, Azinian, and Davitian all purportedly were associated with Global Waste; none of the individuals registered as shareholders were in any way connected to the other three companies. Of the companies that comprised the consortium, it turned out that Global Waste was already in bankruptcy. There is no indication that the other companies ever were involved after the concession was granted, even though, as the Notice of Claim states in paragraph 8, quote "the municipal authorities concluded that the most qualified group to undertake the project was the consortium." unquote 3
Moreover, another version of DESONA, which I will call DESONA UNO, actually had the concession transferred to it by the municipality, at the request of purported representatives.of DESONA. The shareholders of DESONA UNO are Ariel Goldenstein and Ortsvio Flavio Palacios Gomez. Subsequently, the concession contract was formalized with DESONA A or DESONA B, neither of which had the legal right to the concession at that time.
For these reasons, this claim cannot proceed on the merits unless the identity of the investors has been established, so that a determination can be made as to whether these claimants are entitled to invoke this procedure.
4
}
s 00CKETED USHRC UNITED STATES OF AMERICA y si -1 P5 36 NUCLEAR REGULATORY COMMISSION OFRCE OF S$RNRY
$JUbtCAHONS %W r-RVLEMAKl%3 Before the Commission
)
In the Matter of '
)
)
Docket No. 70-30 ML LOUISIANA ENERGY SERVICES, L.P. )
)
(Special Nuclear Material (Claiborne Enrichment Center)
)
License)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the " Motion By The Nuclear Energy Institute For Leave To File An Amicus Reply Brief On Review Of Licensing Board Decision LBP-97-8" and the "NEI Amicus Reply Brief On Review Of Licensing Board Decision LBP-97-8 Concerning Environmental Justice" have been served on the persons listed be-low by deposit in the United States mail, first class, postage prepaid, or where indicated by an asterisk by hand delivery, or where indicated by a double asterisk by both facsimile and first class mail, this 30th day of September,1997.
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' Shirley A. Jackson, Chairman
- Greta J. Dieus, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop O 16 GIS Mail Stop O-16 GIS One White Flint North One White Flint North 11555 Rocksille Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738
- Edward McGaffigan, Jr., Commissioner
- Nils J. Diaz, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop O-16 GIS Mail Stop O-16 GIS One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738
- Thomas S. Moore, Administrative Judge
- Frederick J. Shon, Administrative Judge Chairman, Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852 2738
- Richard F. Cole, Administrative Judge
' Office of Commission Appellate Adjud Atomic Safety and Licensing Board U.S.- Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North Two White Flint North 11555 Rockville Pike i1545 Rockville Pike Rockville, MD 20852-2738 Rocksille, MD 20852-2738
' Office of the Secretary Atomic Safety and Licensing Board Pane Attn: Docketing and Service Branch U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 2
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i 6
- Eugene Holler, Esq.
J. Michael McGarry, III, Esq.
Office of the General Counsel Winston & Strawn U.S. Nuclear Regulatory Commission 1400 L Street, N.W.
One White Flint North Washington, D.C. 20005 11555 Rockville Pike Rockville, MD 20852-2738 Robert G. Morgan - WC26B Licensing Manager Marcus A. Rowden, Esq.
Fried, Frank, Harris, Shriver & Jacobsen Duke Engineering & Services, Inc.
I101 Pennsylvania Avenue, N.W.
400 Souti. Tryon Street Suite 900 South Charlotte, NC 28201-1004 Washington, DC 20004 Diane Curran, Esq.
Roland J. Jensen Harmon Curron, Gallagher & Spielberg Louisiana Energy Services, L.P.
2001 S Street, N.W., Suite 430 2600 Virginia Avenue, N.W.
Washington, DC 20009 Suite 608 b
Washington, DC 20037 Joseph DiStefano, Esq.
"Nathalie M. Walker, Esq.
Quinn, Racusin & Gazzola Sierra Club Legal Defense Fund 1401 H Street, N.W.
400 Magazine Street, Suite 401 Suite 510 New Orleans, LA 70130 Washington, DC 20005 Mr. Ronald Wascom David S. Bailey, Esq.
Deputy Assistant Secretary Thomas J. Henderson, Esq.
Office of Air Quality & Radiation Protection Lawyers' Committee for Civil P.O. Box 82135 Rights Under Law Baton Rouge, LA 70884-2135 1450 G Street, N.W., Suite 400 Washington, DC 20005 0
Paul A.Gaukler Counsel for Nuclear Energy Institute 3
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