Good Air Pollution Control Practice Enforcement—It’s a Real Thing
In September 2019, a federal district court in Massachusetts ordered the owner of a fuel storage terminal to pay $1.2 million in civil penalties for violations of the Clean Air Act and the Clean Water Act. The principal claims in the case were that the R.M. Packer Company caused excess emissions of volatile organic compounds (VOC) and hazardous air pollutants (HAP) by failing to operate its fuel storage tanks and vapor control systems consistent with good air pollution control practices. Any company that owns or operates tanks containing organic liquids should find this case remarkable for at least three reasons.
First, this case is one of a very few in which the EPA’s good air pollution control practice claims have been litigated to a final remedy. In this case, the court found that the company had failed to maintain a tank pressure relief valve properly. This failure caused the valve to open improperly during fuel transfer operations, resulting in excess emissions of VOCs and HAPs. In addition, the court found that the company had failed to maintain its carbon bed-based vapor control system, which was intended to capture emissions from fuel transfer operations. The court held that these failures violated the Clean Air Act’s good air pollution control practices requirement.
The good air pollution control practices requirement is qualitative. In other words, a company might be in compliance with all numeric air emission limitations, but might still cause non-compliant air pollution by not following additional, unspecified good air pollution control practices. See, e.g., 40 C.F.R. § 60.11(d), 40 C.F.R. § 63.6(e). Some have greeted the use by enforcement of these requirements with some skepticism. Nevertheless, the district court here had no difficulty holding that failing to maintain a tank pressure relief valve and a carbon bed-based vapor capture system violated these qualitative requirements. Companies should expect the EPA to cite this case in future enforcement actions.
Second, cases like this will become more frequent under the EPA’s new National Compliance Initiative (NCI) focused on VOC and HAP emissions. The goal of the Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants NCI is “to address the adverse health and environmental effects from exceedances of the [National Ambient Air Quality Standards] to which sources of VOCs contribute, as well as VOC- and HAP-related health impacts on communities.” The facility in this case is located in an area that is in marginal nonattainment with the 2008 8-hour ozone NAAQS. Importantly, however, while the principal focus of this NCI is on reducing HAP-related impacts on communities and nonattainment with the NAAQS, the EPA’s enforcement efforts will not be limited to nonattainment areas.
Last, this case highlights the growing sophistication of the EPA’s remote sensing and emission detection systems. The court noted that EPA inspectors used a portable flame ionization detector to confirm the emissions of VOC vapors during the loading of a marine barge. The EPA also used a forward looking infrared (FLIR) camera to detect emissions from the improperly maintained pressure relief valve and vapor control system. EPA inspectors deploy these tools to screen a facility quickly for areas of concern, and then follow up in these areas with more detailed testing methods. For companies that want more information about the EPA’s emission detection technologies, the EPA has published this short case study. More sophisticated companies (or their contractors) are using tools like FLIR cameras themselves to screen for and address areas of concern before a regulator discovers those problems during an inspection.
In closing, companies that own or operate tanks containing organic liquids should follow the EPA’s inspection and enforcement efforts in this area closely. Companies should also be mindful of the EPA’s increasingly effective use of good air pollution control practices claims to address emissions of VOCs and HAPs.
Patrick Traylor is a partner in the firm’s Washington, D.C. office and was most recently the Deputy Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance. Misty Howell is an associate in the firm’s Washington, D.C. office.