July 22, 2005
Assistant Attorney General
Environmental and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, DC 20004-7611
Re: Comments on the Proposed Consent Decree for United States et al. v. Sunoco, DOJ Ref. 90-5-2-1-1744/1
Dear Assistant Attorney General:
Ohio Citizen Action, Eastside-Oregon Environmental Group, National Refinery Reform Campaign and Environmental Integrity Project file these comments on the proposed Clean Air Act settlement with Sunoco, Inc. The comments herein specifically reference the Sunoco refinery in Oregon, OH. Ohio Citizen Action and the Eastside-Oregon Environmental Group ask that while you consider these comments, you keep in mind that many of our members work and live near Sunoco’s Mid-America Refinery and therefore, are exposed to their toxic emissions on a daily basis. All of those commenting appreciate the Department of Justice and Environmental Protection Agency’s efforts to take action in regards to longstanding violations of the Clean Air Act by Sunoco in Oregon, OH and at refineries nationwide.
However, we do have several objections to specific requirements or omissions in the consent decree, as listed below:
(1)The four and a half year time frame in which Sunoco has to complete the major improvements is unsatisfactory do to the daily negative impact their emissions are having on the surrounding community.
Section V of the consent decree (Affirmative Relief/Environmental Projects) contains the programs that Sunoco must implement as well as the time frame for each projects completion. Upon reviewing this information we learned that Sunoco has until 12/31/2009 to complete the five major improvements at its Oregon, OH refinery. The U.S. EPA started their refinery initiative in 1998. Many of the refineries came in and settled in 2000 and 2001. Sunoco chose to ignore the initiative and seven years have passed. In that time, Sunoco’s Oregon refinery has continued to batter the local community with toxic pollution while financially benefiting from delaying its compliance with Clean Air Act requirements. As a result, Sunoco should be held to stricter requirements and be forced to move up the time frame they have been given to implement these changes. Furthermore, many fenceline neighbors have expressed frustration over the fact that they must continue living with the current levels of pollution coming from Sunoco for another 4 ½ years. Allowing Sunoco to wait this long to make significant improvements allows further degradation of existing equipment and processes.
EPA should also require Sunoco to evaluate and report on the possibility of making as many of the improvements when unplanned shutdown and maintenance occurs as possible. Where it is possible, Sunoco should be required to make improvements ahead of the 12/31/09 deadline. Sunoco’s Oregon refinery does in fact experience frequent unplanned shutdowns due to the age and unsafe operation of their equipment. EPA should require Sunoco to immediately report unplanned shutdowns and evaluate the need to make the improvements earlier than 12/31/09. In addition EPA must carefully evaluate the unplanned shutdowns, flarings, fires, explosions and upsets from today through 2009 to ensure that it is safe to delay the full implementation of all improvements that long. Given Sunoco’s troubled record of serious flarings, fires, explosions and upsets in recent years, it is possible that allowing the refinery to wait until a planned turnaround in 2009 could result in significant health threats to the community and a catastrophic accident. EPA needs to seriously consider that by not requiring Sunoco to move up its planned turnaround to 2007, your agency is condoning the ongoing serious pollution harming the health and safety of thousands of residents. In that Sunoco has seriously violated Federal Law for a long time as documented by your enforcement action, action to speed the solutions should be taken regardless of the cost to the violator.
(2)The consent decree does not require Sunoco to implement pollution prevention, only pollution controls.
Although the consent decree contains numerous improvements to pollution control equipment, there should also be strong requirements for Sunoco to follow time-tested methods for pollution prevention and source reduction. Sample language which would be included in the consent decree can be found as part of EPA-330/9-97-002R, Compliance-Focused Environmental Management System -Enforcement Agreement Guidance, Revised June 2005.
Encouraging Sunoco to improve their processes as well as modernize the Oregon refinery with control equipment would prove much more effective than the latter alone. The refining process uses a variety of toxic substances that are transferred throughout the refinery between storage tanks, process units and from one process to another. Much of the equipment (pipes, seals, valves, pumps, etc) that transfers these chemicals becomes potential sources of leaks and fugitive emissions. The consent decree does contain programs that aim to improve leak detection. There are also programs within the consent decree concerning benzene waste and requiring root cause analysis for certain flaring events. While we support these provisions, they do not go far enough in requiring Sunoco to implement pollution prevention practices.
Additional methods of pollution prevention would not only enable Sunoco to run the Oregon refinery in a safer and cleaner manner, but also prove their dedication to protecting the health and safety of their closest neighbors. Process improvement and compliance go hand in hand. For example, neighbors of a Unocal facility in California were able to secure a “three strikes and you’re out” agreement regarding the refineries leaking valves. First, inspections were changed from a quarterly to monthly schedule. If the same valve was found to be leaking three times, Unocal was forced to update it to the state of the art technology of leakless ‘bellows’ style valves.
(3)The consent decree does not call for active fenceline monitoring.
The best way for the community to make sure that Sunoco is in compliance with the Clean Air Act is through active monitoring of refinery emissions at the fenceline. Violations and “accidents” will continue regardless of the proposed control equipment. Of course community members can call EPA with complaints but many times the agency arrives too late to record accurate samples. More often than not, community members are left out of the decision making process between agencies and industry regarding monitoring. When monitoring is not secured for them, neighbors of polluting facilities have to rest on the assurances of the company and government officials who typically tell them that the malfunction was not a threat.
Furthermore, when an accident inevitably occurs, the penalty for these emissions is minimal and gives the company no incentive to change their processes. Providing a constant monitoring source for the community empowers them with real data that becomes their strongest tool in ensuring the refineries compliance. Constant monitoring is a must at this refinery. The decree should, therefore, be revised to include requirements for fenceline monitoring.
(4)The consent decree allows exemptions for emissions caused during startup, shutdown, and malfunctionfrom compliance with emission limits for NOx, SO2, PM, and CO.
EPA has a policy regarding NSR/PSD permitting that says there should be no blanket exemption from compliance during SSM in NSR/PSD permits. This is because the permits are part of the SIP and are ambient/health-based standards. See, EPA memo from Rasnic to Murphy, Automatic or Blanket Exemptions for Excess Emissions During Startup and Shutdowns Under PSD (“Although we concur with Region I that PSD permits cannot contain automatic exemptions which allow excess emissions during startup and shutdown, we do not believe that EPA’s policy concerning this issue under PSD is somewhat vague. The exemptions granted under some New Source Performance Standards (NSPS) are not applicable to this issue under PSD. The NSPS are technology based standards that are not directly required for meeting ambient standards.”).
Although the consent decree resolves NSR/PDS claims and sets related limits, these limits include blanket exemptions for SSM.
▪ p. 21 paragraph 12 – NOx emissions during SSM “shall not be used in determining compliance with the 40 ppmvd 7-day emission limit, provided that during such periods Sunoco implements good air pollution control practices to minimize emissions.”
▪ p. 23 paragraph 15 – SO2 emissions during SSM “shall not be used in determining compliance with the 50 ppmvd 7-da emissions limit, provided that during such periods Sunoco implements good air pollution control practices to minimize emissions.”
▪ p. 24 paragraph 17 – PM emissions during periods of SSM “shall not be used in determining compliance with the 0.5 or 1 pound PM per 1000 pounds coke burned limit, provide that during such periods Sunoco implements good air pollution control practices to minimize PM emissions”
▪ p. 25, paragraph 19 includes similar provisions for CO
Sunoco’s last turnaround took place from March 5, 2004 to April 5, 2004. Sunoco wrote a letter to Ohio EPA director Chris Jones requesting emission exemptions and received written permission on March 4, 2004. An excerpt from Mr. Jones’ letter to Sunoco reads as follows:
“During the turnaround, Sunoco, Inc. has committed to a number of restrictions in order to minimize emissions during the 30 days of planned maintenance and prevent a violation of the National Ambient Air Quality Standards for sulfur dioxide… based on the information that was submitted, I find this request acceptable. I hereby authorize the shutdown of the air pollution control equipment servicing emission units…”
The letter goes on to list which units could be shut down.
Sunoco was required to submit reports of its emissions during the turnaround. Starting on March 5th, there were several reports that claimed the release of sulfur dioxide would be continuous due to the planned maintenance on the FCC unit. In this 30 day span, Sunoco released over 300,000 lbs of SO2 into the surrounding community. Sunoco’s sulfur dioxide emissions on March 13-14, 16-20, 22, 25-26, 31 and April 3 ranged from 10,000 to 16,000 lbs per day. Sulfur dioxide emissions on April 2 and 4 were between 20,000 and 26,000 pounds per day. Why does the consent decree further exempt Sunoco from following the law concerning their emissions during the startup, shutdown, and malfunction of the refinery? Allowing Sunoco to operate in this manner sends the wrong message to the company and refineries nationwide. A summary of the reported emissions, as well as Sunoco’s letter to the Ohio EPA and EPA’s response, are attached to this letter.
Because emissions during SSM can have a significant adverse effect on the surrounding community, and because including blanket SSM defenses to NSR/PSD emission limits appears to conflict with EPA guidance, we ask that these provisions be deleted from the decree.
(5)Additional consent decree SSM exemptions appear overly broad
Paragraph 50 includes exemptions from compliance with emission limits in 40 CFR §60.104(a)(1) if they result from combustion of gases generated by the Startup, Shutdown or Malfunction of a process unit or released to the flare as a result of relief valve leakage or other emergency Malfunction. This exemption appears to be broader that than allowed by §60.104(a)(1) (which covers only relief valve leakage or other emergency Malfunctions). Because §60.104(a)(1) does not excuse sources from compliance during startup or shutdown, we do not believe the Consent Decree should excuse excess emissions during these conditions.
Similarly, additional exemptions from compliance are included in the Consent Decree for acid gas flaring. Paragraph 60, which applies to acid gas flaring incidents as well as tail gas incidents, says that Sunoco may assert a startup, shutdown, and/or upset defense to a demand for enforcement penalties. While the decree provides that the United States may contest the availability of such a defense, it states that “if Sunoco prevails in persuading the Court that the defenses of Startup, Shutdown and/or upset are available for AG Flaring Incidents under 40 C.F.R. 60.104(a)(1), Sunoco shall not be liable for stipulated penalties….” This part of the consent decree is vague because “upset” is not defined in the decree. Furthermore the consent decree already allows Sunoco to claim a malfunction defense. In the past the EPA has been very clear in saying that state SIP upset, startup or shutdown defenses cannot apply to NSPS violations. See, Memorandum from Steven Herman, EPA Asst. Administrator for Enforcement and Compliance Assurance, State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown (Sept. 20, 1999). Yet it appears that the Consent Decree allows Sunoco to claim such a defense (although we realize it may not prevail) for NSPS violations. This provision would appear to make enforcement of the decree unnecessarily difficult.
We ask that the exemptions for SSM in paragraphs 50 and 60 of the Consent Decree, as discussed above, be removed from the decree.
Thank you for your consideration of these comments.
Sincerely,
Sandy Buchanan, Executive Director
Todd Pincombe, Program Director
Ohio Citizen Action
614 W. Superior Ave. Suite 1200
Cleveland, OH 44113
Eastside-Oregon Environmental Group
1103 Mambrino Rd.
Oregon, OH 43616
Denny Larson
National Refinery Reform Campaign
Director, Global Community Monitor
222 Richland Ave.
San Francisco, CA 94110
Kelly Haragan, Counsel
Equal Justice Works Fellow
Environmental Integrity Project
919 18th St., NW Suite 650
Washington, D.C. 20006