in the united states court of appeals for the ......mexichem resinas vinílicas s.a. de c.v., which...

ORAL ARGUMENT NOT SCHEDULEDNo. 12-1260 (and Consolidated Case Nos. 12-1265, 12-1266, and 12-1267)

——————————IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

——————————

Mexichem Specialty Resins, Inc., et al.,

Petitioners,v.

United States Environmental Protection Agency, et al.,

Respondents.

PETITIONS FOR REVIEW OF FINAL AGENCY ACTION OF THEUNITED STATES ENVIRONMENTAL PROTECTION AGENCY

JOINT OPENING BRIEF OF INDUSTRY PETITIONERS

David M. FriedlandKristin H. GladdBeveridge & Diamond, P.C.1350 I Street, N.W., Suite 700Washington, DC 20005Tel: (202) [email protected]@bdlaw.com

Counsel for Petitioner Oxy Vinyls, LP

Dated: July 1, 2014

Jean-Cyril WalkerDouglas J. BehrKeller and Heckman LLP

1001 G Street, N.W., Suite 500 WestWashington, DC 20001Tel: (202) [email protected]@khlaw.com

Counsel for Petitioner Vinyl Institute, Inc.

ADDITIONAL COUNSEL LISTED

ON INSIDE FRONT COVER

USCA Case #12-1267 Document #1500373 Filed: 07/01/2014 of 106

Christopher D. JensenBarg Coffin Lewis & Trapp LLP350 California Street, 22nd FloorSan Francisco, CA 94104Tel: (415) [email protected]

Counsel for PetitionerMexichem Specialty Resins, Inc.

Marc D. MachlinPepper Hamilton LLP600 Fourteenth Street, N.W.Washington, DC 20005Tel: (202) [email protected]

Counsel for Petitioners Saint-GobainCorporation and CertainTeedCorporation


i

IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

MEXICHEM SPECIALTY RESINS,INC., et al.,

Petitioners,

v.

UNITED STATESENVIRONMENTAL PROTECTIONAGENCY, et al.,

Respondents.

))))))))))))

Case No. 12-1260 (and ConsolidatedCase Nos. 12-1265, 12-1266, and12-1267)

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Industry Petitioners state as follows:

A. Parties, Intervenors, and Amici

Because these consolidated cases involve direct review of final Agency

action, the requirement to furnish a list of parties, intervenors, and amici that

appears below is inapplicable. These cases involve the following parties:

B. Petitioners

Case No. 12-1260: Mexichem Specialty Resins, Inc

Case No. 12-1266: Vinyl Institute, Inc.

Case No. 12-1265: Saint-Gobain Corp. & CertainTeed Corp.

Case No. 12-1267: Oxy Vinyls, LP


ii

C. Respondents

United States Environmental Protection Agency and Gina McCarthy.

D. Intervenors and Amici

Mossville Environmental Action Now, Louisiana Environmental Action

Network, Air Alliance Houston & Sierra Club are Intervenor-Respondents.

There are no amici in these consolidated cases.

E. Rulings Under Review

These consolidated cases involve final agency action of the United States

Environmental Protection Agency entitled “National Emission Standards for

Hazardous Air Pollutants for Polyvinyl Chloride and Copolymers Production”

published on April 17, 2012, at 77 Fed. Reg. 22,848 – 22,948.

F. Related Cases

This case relates to the same rulemaking that was before the Court in

Mossville Environmental Action Now v. EPA, No. 02-1282, 370 F.3d 1232 (D.C.

Cir. 2004) and the instant Rule is an outgrowth of the vacatur ordered in that case.

Otherwise, the only related case is Mossville Environmental Action Now v. EPA,

No. 12-1263, in which the Court ordered that briefing be held in abeyance.

Dated: July 1, 2014 Respectfully submitted,


iii

/s/ David M. FriedlandDavid M. FriedlandKristin H. GladdBeveridge & Diamond, P.C.1350 I Street, N.W., Suite 700Washington, DC 20005Tel: (202) [email protected]@bdlaw.com


/s/ Jean-Cyril WalkerJean-Cyril WalkerDouglas J. BehrKeller and Heckman LLP



/s/ Christopher D. JensenChristopher D. JensenBarg Coffin Lewis & Trapp LLP350 California Street, 22nd FloorSan Francisco, CA 94104Tel: (415) [email protected]


/s/ Marc D. MachlinMarc D. MachlinPepper Hamilton LLP600 Fourteenth Street, N.W.Washington, DC 20005Tel: (202) [email protected]



iv

IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

MEXICHEM SPECIALTY RESINS,INC., et al.,

Petitioners,

v.

UNITED STATESENVIRONMENTAL PROTECTIONAGENCY, et al.,

Respondents.

))))))))))))

Case No. 12-1260 (and ConsolidatedCase Nos. 12-1265, 12-1266, and12-1267)

RULE 26.1 DISCLOSURE STATEMENTS

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule

26.1, Petitioners provide the following disclosures:

Mexichem Specialty Resins, Inc. is a wholly owned subsidiary of

Mexichem Resinas Vinílicas S.A. de C.V., which is in turn a wholly owned

subsidiary of Mexichem S.A.B. de C.V. No parent corporation and no publicly

held corporation owns more than 10% of the stock of Mexichem Specialty Resins,

Inc.

The Vinyl Institute, Inc. is a not-for-profit trade association, founded in

1982, that represents the leading manufacturers of polyvinyl chloride (“PVC”)

resin, PVC additives and modifiers, and PVC compounds.


v

Saint-Gobain Corp. & CertainTeed Corp. CertainTeed is an indirect,

wholly-owned subsidiary of Saint-Gobain. Saint-Gobain is an indirect, wholly-

owned subsidiary of Compagnie de Saint-Gobain, Paris, France. The Wendel

Group, Paris, owns more than 10% of the stock of Compagnie de Saint-Gobain.

Oxy Vinyls, LP is an indirect wholly-owned subsidiary of Occidental

Chemical Corporation, which in turn, is an indirect wholly-owned subsidiary of

Occidental Petroleum Corporation, a publicly traded company.












vi

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i

RULE 26.1 DISCLOSURE STATEMENTS ...........................................................iv

TABLE OF AUTHORITIES ....................................................................................ix

GLOSSARY OF TERMS...................................................................................... xiii

STATEMENT OF JURISDICTION..........................................................................1

STATEMENT OF STANDING ................................................................................1

STATEMENT OF THE ISSUES ON APPEAL .......................................................3

SUMMARY OF ARGUMENT .................................................................................4

I. STATUTORY AND PROCEDURAL BACKGROUND...............................7

A. Statutory Background............................................................................7

B. Regulatory Background.........................................................................9

C. The Rule and Its Genesis.....................................................................13

1. Process Wastewater Limits .......................................................13

2. Emission Limits for PVC-Combined Process Vents ................17

3. Emission Limits for Vent Gas Absorbers .................................19

4. Opening Equipment in Light of the Prohibition AgainstBypasses....................................................................................22

5. Pressure Relief Devices (“PRDs”)............................................25

D. Rulemaking Under the Clean Air Act .................................................27


vii

STANDARD OF REVIEW .....................................................................................28

ARGUMENT ...........................................................................................................28

I. PETITIONERS’ PROCEDURAL CHALLENGES ARE NOT BARREDBY THE RECONSIDERATION ..................................................................28

A. Review is Not Barred Because EPA is Not Taking Comment on theExisting Rule and Thus Reconsideration is Complete........................30

B. In the Alternative, if the Process of Promulgating a New Rule isConsidered Part of “Reconsideration,” EPA’s Failure to Timely FinishReconsideration Violated the CAA.....................................................33

C. Alternatively, the Court Should Stay the Rule PendingReconsideration ...................................................................................35

II. THE ADOPTION OF THE PROCESS WASTEWATER LIMITS WASFATALLY FLAWED ...................................................................................37

A. Industry Petitioners Were Denied Notice and Comment....................37

B. The Methodology for Regulating Process Wastewater Was Arbitraryand Capricious.....................................................................................40

C. The Wastewater Non-Vinyl TOHAP Limit for Area Sources is ClearError and Must be Vacated..................................................................44

III. EPA ACTED ARBITRARILY AND CAPRICIOUSLY IN SETTING THEPROCESS VENT LIMITS............................................................................47

A. Industry Petitioners Were Denied Notice and Comment....................48

B. The PVC-Combined Limits Must be Vacated Because They WereDeveloped Arbitrarily and Capriciously and Conflict With theRequirements of Other MACTs ..........................................................50

C. EPA’s Refusal to Subcategorize PVC-Only Process Vents Based onVGA and Thermal Control Technologies Was Arbitrary andCapricious............................................................................................52

IV. THE PROVISIONS CONCERNING BYPASSES FROM CLOSED VENTSYSTEMS ARE ARBITRARY AND CAPRICIOUS, CONFLICT WITH


viii

THE EQUIPMENT OPENING PROVISIONS, AND ARE NOTACHIEVABLE..............................................................................................54

A. EPA Was Arbitrary and Capricious When it Prohibited BypassesEven in the Case of Maintenance........................................................55

B. EPA Erred in Not Conducting a Beyond-the-Floor Analysis of theBypass Provisions................................................................................56

V. THE PROVISIONS FOR PRESSURE RELIEF DEVICES AREARBITRARY AND CAPRICIOUS AND ARE NOT ACHIEVABLE.......60

VI. VACATUR OF THESE EMISSION LIMITS IS THE APPROPRIATEREMEDY ......................................................................................................62

CONCLUSION........................................................................................................63

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

STATUTORY AND REGULATORY ADDENDUM


ix

TABLE OF AUTHORITIES1

Page(s)

CASES

Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146(D.C. Cir. 1993) .............................................................................................63

Allina Health Servs. v. Sebelius, 746 F.3d 1102 (D.C. Cir. 2014) ..........................63

City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir. 2003) ......................................39

Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914 (D.C. Cir. 1998) .................43

Env’tl Integrity Project v. EPA, 425 F.3d 992 (D.C. Cir. 2005) .............................38

Holland v. Florida, 560 U.S. 631 (2010).................................................................36

MCI Telecomm. Corp. v. FCC, 627 F.2d 322 (D.C. Cir. 1980) ..............................33

*Mossville Envtl. Action Now v. EPA, 370 F.3d 1232 (D.C. Cir. 2004) .. ii, 9, 28, 43

Mossville Envtl. Action Now v. Jackson, No. 1:08-cv-1803-JDB (D.D.C.filed Oct. 22, 2008)........................................................................................10

Motor Vehicle Mfrs. Ass’n v. EPA, 768 F.2d 385 (D.C. Cir. 1985) ........................27

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,463 U.S. 29 (1983)...................................................................................54, 60

Nat’l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115 (D.C. Cir. 2013) ......43

*Nat’l Lime Ass’n v. EPA, 627 F.2d 416 (D.C. Cir. 1980)......................................54

Natural Res. Def. Council (NRDC) v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) ........36

Natural Res. Def. Council (NRDC) v. EPA, 489 F.3d 1364 (D.C. Cir. 2007) ........62

1 Authorities upon which we chiefly rely are marked with an asterisk.


x

*Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C. Cir. 2004) ..........38, 54

North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008)..........................................27

*Portland Cement Ass’n v. EPA, 665 F.3d 177(D.C. Cir. 2011) .............................................................. 35, 36, 50, 51, 53, 57

Sierra Club v. EPA, 167 F.3d 658 (D.C. Cir. 1999)..........................................43, 58

*Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) ..............................9, 25, 43, 58

Small Refiner. Lead Phase-Down Task Force v. U.S. EPA, 705 F.2d 506(D.C. Cir. 1983) .......................................................................................53, 60

Utility Air Regulatory Group v. EPA, 744 F.3d 741(D.C. Cir. 2014) ...........................................................................28, 31, 32, 33

STATUTES

*5 U.S.C. § 705........................................................................................................35

42 U.S.C. § 7412(a)(1)...............................................................................................8

42 U.S.C. § 7412(a)(2)...............................................................................................8

42 U.S.C. § 7412(d) .................................................................................................27

42 U.S.C. § 7412(d)(1)...............................................................................................7

*42 U.S.C. § 7412(d)(2) ................................................................................8, 25, 46

*42 U.S.C. § 7412(d)(3) ......................................................................................8, 46

42 U.S.C. § 7412(d)(3)(B) ...................................................................................8, 57

42 U.S.C. § 7412(d)(5).........................................................................................8, 44

42 U.S.C. § 7412(h)(2)(A).......................................................................................23

42 U.S.C. § 7412(q)(1)...............................................................................................9


xi

42 U.S.C. § 7414(a)(1)(C) .......................................................................................59

42 U.S.C. § 7602(k) .................................................................................................59

42 U.S.C. § 7607(b)(1)...............................................................................................1

42 U.S.C. § 7607(d)(1)(C) .......................................................................................27

42 U.S.C. § 7607(d)(3).......................................................................................27, 37

42 U.S.C. § 7607(d)(4)(B)(i) ...................................................................................27

42 U.S.C. § 7607(d)(6)(A).......................................................................................27

42 U.S.C. § 7607(d)(6)(C) .......................................................................................27

42 U.S.C. § 7607(d)(7)(B) ...........................................................................29, 31, 37

42 U.S.C. § 7607(d)(8).................................................................................28, 40, 49

*42 U.S.C. § 7607(d)(9) ....................................................................................27, 28

42 U.S.C. § 7607(d)(9)(D).................................................................................39, 49

42 U.S.C. § 7607(d)(9)(D)(ii) ..................................................................................31

FEDERAL REGULATIONS

40 C.F.R. § 61.65(a).................................................................................................61

40 C.F.R. § 63.100(j)(4).............................................................................................9

40 C.F.R. § 63.11865 .........................................................................................18, 50

40 C.F.R. § 63.11875(a).............................................................................................5

40 C.F.R. § 63.11915(c).......................................................................................... 25

40 C.F.R. § 63.11925(a)...........................................................................................17

40 C.F.R. § 63.11930(c)...............................................................................22, 23, 56

40 C.F.R. § 63.11945(d) ..........................................................................................19


xii

40 C.F.R. § 63.11955 ...................................................................................23, 55, 56

40 C.F.R. § 63.12005 ................................................................... 23, 38 Fn. 3, 47, 60

FEDERAL REGISTER

41 Fed. Reg. 46,560 (October 21, 1976) ...................................................................9

59 Fed. Reg. 19,402 (April 22, 1994)........................................................................9

76 Fed. Reg. 28,318 (May 17, 2011) .......................................................................29

76 Fed. Reg. 29,528 (May 20, 2011) ........................................ 10, 11, 13, 14, 38, 39

76 Fed. Reg. 42,613 (July 19, 2011)........................................................................11

77 Fed. Reg. 22,848 (April 17, 2012) ........ ii, 1, 4, 10, 13, 15, 16, 18, 21, 23, 26, 41,42 Fn.4, 47, 48, 49, 50, 52, 53, 57, 58, 62

77 Fed. Reg. 49,490 (August 16, 2012)...................................................................24

79 Fed. Reg. 17,340 (March 27, 2014)....................................................................24


xiii

GLOSSARY OF TERMS

Act Clean Air Act

Agency U.S. Environmental Protection Agency

CAA Clean Air Act

EPA U.S. Environmental Protection Agency

EDC Ethylene Dichloride

Final Rule or Rule National Emission Standards for Hazardous AirPollutants for Polyvinyl Chloride and CopolymersProduction, 77 Fed. Reg. 22,848 (April 17, 2012)

GACT Generally Available Control Technologies ormanagement practices

HAP Hazardous Air Pollutant

HON Rule National Emission Standards for Organic Hazardous AirPollutants from the Synthetic Organic ChemicalManufacturing Industry, 59 Fed. Reg. 19,402 (April 22,1994), 40 C.F.R., Part 63, Subparts F – H

MACT Maximum Achievable Control Technology

MON Rule National Emission Standards for Hazardous AirPollutants: Miscellaneous Organic ChemicalManufacturing, 68 Fed. Reg. 63,852 (Nov. 10, 2003); 40C.F.R. Part 63, Subpart FFF

NESHAP National Emission Standards for Hazardous AirPollutants

Part 61 NESHAP National Emission Standards for Vinyl Chloride, 41 Fed.Reg. 46,560 (Oct. 21, 1976).

ppm Parts Per Million

ppmw Parts Per Million by Weight

PRD Pressure Relief Device


xiv

PVC Polyvinyl Chloride

PVCPU PVC Production Process Unit

Proposal National Emission Standards for Hazardous AirPollutants for Polyvinyl Chloride and CopolymersProduction, 76 Fed. Reg. 29528 (May 20, 2011)

R. Docket No. Rulemaking Docket No. EPA-HQ-OAR-2002-0037

PVC MACT National Emission Standards for Hazardous AirPollutants for Polyvinyl Chloride and CopolymersProduction, 77 Fed. Reg. 22,848 (April 17, 2012)

THC Total Hydrocarbon

TOHAP Total Organic Hazardous Air Pollutants

UPL Upper Predictive Limit

VCM Vinyl Chloride Monomer

VGA Vent Gas Absorber

VI The Vinyl Institute, Inc.


1

STATEMENT OF JURISDICTION

The Environmental Protection Agency (“EPA” or “Agency”) published its

final Rule entitled National Emission Standards for Hazardous Air Pollutants for

Polyvinyl Chloride and Copolymers Production on April 17, 2012. This Court has

jurisdiction to review the Rule under the Clean Air Act (“CAA” or “Act”), 42

U.S.C. § 7607(b)(1). Petitioners timely filed their petitions for review of this final

Rule between June 14 and 18, 2012, well within the 60-day window under CAA §

307(b)(1), 42 U.S.C. § 7607(b)(1). These petitions were consolidated into the

instant case.

STATUTES AND REGULATIONS

All applicable statutes and regulations are provided in the Statutory and

Regulatory Addendum.

STATEMENT OF STANDING

The Vinyl Institute, Inc. (“VI”) is a trade association that represents, among

others, the leading manufacturers of polyvinyl chloride (“PVC”) resin. VI

participated in EPA’s rulemaking process. The VI has standing to sue on behalf of

its members because: (1) its members would have standing to sue on their own

right, given that they will be directly regulated under the Rule; (2) the interests that

the VI seeks to protect are germane to the association’s purpose of advocating the

policy interests of its individual members before agencies and in litigation; and (3)


2

neither the claims asserted, nor the relief requested, requires that an individual

member of the association participate in the lawsuit.

Oxy Vinyls, LP; Mexichem Specialty Resins, Inc.; CertainTeed Corporation;

and Saint-Gobain Corporation each have standing because each is a manufacturer

of PVC that is directly regulated under the Rule and each participated in the EPA

rulemaking.


3

STATEMENT OF THE ISSUES ON APPEAL

1. Whether judicial review of the procedural errors surrounding certain of the

Rule’s emission limits is barred where EPA granted reconsideration but

rather than address the procedural errors, has embarked on a four-year

rulemaking, which will not be completed until a year after the compliance

date imposed by the existing Rule?

2. Whether the non-vinyl chloride TOHAP process wastewater limits are

invalid and should be vacated because EPA changed its approach after the

close of the comment period without notice and an opportunity to comment,

and:

a. The 110 ppm limit for existing major sources was set using a

methodology EPA has acknowledged is flawed because it is based on

vastly incomplete data in violation of the Act?

b. The 0.018 ppm limit for new and area sources is based on faulty data

that EPA has acknowledged resulted in a flawed standard that cannot

be met, and which does not comport with the requirements of the Act?

3. Whether the process vent limits are invalid and should be vacated because

EPA changed its approach after the close of the comment period without

providing notice and an opportunity to comment, and:


4

a. Used data obtained from another source category and the resultant

limits create a conflict between the categories?

b. EPA refused to set separate limits for process vents from non-

combustion devices that employ significantly different technology and

have significantly different emissions from combustion devices?

4. Whether the bypass and pressure relief device provisions, are arbitrary and

capricious because they are beyond-the-floor requirements that are not

achievable as required by the Act?

SUMMARY OF ARGUMENT

This petition for review arises from the Agency’s inability to manage this

rulemaking, compounded by an aggressive rulemaking schedule EPA agreed to in

order to settle litigation, and EPA’s inability to issue a revised final rule reflecting

the Agency’s reconsideration of the existing rule before the April 17, 2015

compliance date.

On April 17, 2012, EPA promulgated its Rule establishing maximum

achievable control technology (“MACT”) standards to regulate hazardous air

pollutant (“HAP”) from facilities that manufacture PVC and copolymer resins. 77

Fed. Reg. 22,848 (Apr. 17, 2012). This Rule, commonly referred to as the PVC

MACT, regulates emissions from process vents, equipment leaks, stripped resin,

process wastewater, heat exchange systems, and other emission sources at such


5

facilities located at major and area sources. The Rule was effective upon

publication, but provides existing facilities until April 17, 2015, to come into full

compliance. 40 C.F.R. § 63.11875(a).

EPA set process wastewater limit for major and area sources without

providing adequate notice or opportunity to comment, and based on data that either

was incorrect or incomplete. The 0.018 ppm non-vinyl chloride total hazardous air

pollutant (“TOHAP”) wastewater limits for existing area sources and all new

sources, which EPA itself has conceded are fatally flawed, are based on an

erroneous data point from outside the source category in clear violation of the Act.

Thus, no area or new source can meet this limit. Similarly, EPA erred in using

only four HAPs to set the non-vinyl chloride TOHAP wastewater limit for existing

major sources that is intended to control a total of at least 30 HAPs. As a result, it

is technically infeasible to make any copolymer resins and a significant number of

the suspension resins produced by the industry.

EPA’s promulgation of the process vent limits was similarly flawed.

Without notice and comment, EPA subcategorized “PVC-only” and “PVC

combined” process vents, and then based the limits on data obtained under the

guise of a different proceeding. EPA also failed to consider data in the record and

provide a rational basis for not subcategorizing process vents controlled by

radically different vent gas absorber (“VGA”) technology, which does not use


6

thermal controls and produces a complete different emissions profile than thermal

control devices.

EPA failed to demonstrate that its beyond-the-floor requirement for release

indicators and alert systems directly on pressure relief devices that discharge to the

atmosphere is achievable, as required by the Act. No reasonable cost-benefit

analysis, let alone this Rule’s flawed one, could support the imposition of this

requirement, that by the Agency’s own admission, results in zero emissions

reductions.

EPA’s requirements governing “bypasses” or the diversion of emissions

from a facility’s control devices are similarly flawed. First, the regulatory

language prohibiting such bypasses directly conflicts with provisions allowing the

opening of operating equipment for maintenance subject to certain requirements.

In addition, EPA violated the Act by failing to consider the costs and benefits of

requiring the installation of flow indicators, key locks, or car-seals on thousands of

operating valves to prevent such bypasses.

EPA granted Industry partial reconsideration based on the lack of notice and

comment on the process wastewater, process vents and stripped resin limits.

Rather than address its procedural errors as the Act contemplates, EPA embarked

on three additional rounds of data collection. EPA projects it will need at least

until mid-to-late June 2015 to collect and analyze new data and to issue a proposed


7

replacement rule, and until at least April 2016 for a new final rule, which would be

nearly four years from the Agency’s grant of partial reconsideration. Yet the Rule

requires compliance by April 17, 2015, more than a year before any replacement

rule will be adopted.

EPA’s rulemaking under the guise of reconsideration does not prevent this

Court from reviewing EPA’s procedural errors and vacating the deficient

provisions of the Rule. EPA has conceded its procedural errors. Either the record

is complete and this challenge is ripe for review, or the Agency’s failure to fulfill

its procedural obligations requires this Court to exercise its authority to provide

relief. EPA cannot be allowed to force on Industry the Hobson’s Choice of ceasing

operations as of the compliance date or operating under threat of significant

enforcement penalties or citizens’ suits for violations of a clearly flawed Rule

because EPA has embarked on a protracted rulemaking process that the Agency

terms “reconsideration.”

I. STATUTORY AND PROCEDURAL BACKGROUND

A. Statutory Background

The CAA requires EPA to promulgate regulations establishing technology-

based emission standards for each category or subcategory of “major sources” and

“area sources” of HAPs that EPA is required to regulate. 42 U.S.C. § 7412(d)(1).

A “major source” is a stationary source that has the potential to emit, considering


8

controls, ten tons per year or more of any HAP, or twenty-five tons per year of any

combination of HAPs. Id. at § 7412(a)(1). An “area source” is any stationary

source of HAPs that is not a major source. Id. at § 7412(a)(2).

For major sources, the emission standards are based on the “maximum

degree of reduction in emissions” achievable, or “maximum achievable control

technology” (“MACT”), considering cost, non-air quality health and

environmental impacts, and energy requirements of such reductions. 42 U.S.C. §

7412(d)(2). For area sources, EPA may establish alternative standards that provide

for the use of “generally available control technologies” (“GACT”) or management

practices. Id. at § 7412(d)(5). Once EPA has exercised its discretion to set an

alternative area source standard, however, the standard must be achievable by

GACT or management practices.

In a category or subcategory with fewer than thirty sources, the minimum

degree of stringency or “floor” for MACT standards for existing major sources is

the average emission limitation achieved by the five best performing sources in the

category or subcategory, for which the Administrator has or could reasonably

obtain emissions information. 42 U.S.C. § 7412(d)(3)(B). For new major sources,

the floor for MACT standards is the emission control that is achieved in practice

by the best controlled similar source, as determined by EPA. 42 U.S.C. §

7412(d)(3). Once the MACT floor has been identified, EPA must decide whether


9

stricter, “beyond-the-floor” standards are “achievable.” The statute “provides a

framework for analyzing achievability, including consideration of cost, energy

requirements, and other factors.” Sierra Club v. EPA, 353 F.3d 976, 989 (D.C. Cir.

2004).

B. Regulatory Background

The first emission standards applicable to sources in the PVC and

Copolymers Production source category were promulgated in 1976. 41 Fed. Reg.

46,560 (Oct. 21, 1976). These standards, referred to as the Part 61 NESHAP,

regulated vinyl chloride emissions from ethylene dichloride (“EDC”), vinyl

chloride monomer (“VCM”) and PVC plants. After Congress amended the Clean

Air Act in 1990 to require that EPA review and, if appropriate, revise its existing

emission standards, 42 U.S.C. § 7412(q)(1), EPA first addressed production of

EDC and VCM, in the Hazardous Organic NESHAP (“the HON Rule”). 59 Fed.

Reg. 19,402 (Apr. 22, 1994). Batch operations, such as PVC production, were

specifically excluded from the HON Rule, see 40 C.F.R. § 63.100(j)(4), and

remained subject to the Part 61 NESHAP.

EPA thereafter began development of this Rule in 1998. A rule was

promulgated in July 2002, but vacated by this Court two years later. See Mossville

Envtl. Action Now v. EPA, 370 F.3d 1232 (D.C. Cir. 2004).


10

On October 22, 2008, several environmental groups sued EPA to require the

promulgation of the PVC MACT rule. Mossville Envtl.Action Now v. Jackson, No.

1:08-cv-1803-JDB (D.D.C. filed Oct. 22, 2008) (“District Court Case”). On

October 30, 2009, EPA and the environmental groups executed a Settlement

Agreement under which the Agency would publish a proposed PVC MACT rule

within a year and a final rule nine months thereafter. The Settlement was amended

several times in small increments first primarily to extend the date for the proposed

rule and then to change the date for the final rule. Stipulation of the Parties (J.A.

_____).

After the initial settlement, EPA embarked on an expedited data collection

campaign. Industry objected to the schedule, anticipating many of the types of

data collection errors that subsequently occurred. See R. Docket No. EPA-HQ-

OAR-2002-0037-0038 (J.A. ___).

On March 16, 2011, two weeks before the proposed PVC MACT Rule was

sent to OMB for approval, R. Docket No. EPA-HQ-OAR-2002-0037-0106 (J.A.

___), and two months before the notice of proposed rule was published, see 76

Fed. Reg. 29,528 (May 20, 2011), EPA sent a Section 114 Request to a subset of

facilities that produce EDC and/or VCM, including a few co-located with PVC

facilities. 77 Fed. Reg. 22,848, 22,871 (Apr. 17, 2012). According to EPA, “[t]he

purpose of this request is to collect information to characterize hazardous air


11

pollutant emissions from VCM and EDC production facilities.” EDC/VCM

Section 114 Request (J.A. ___). The requests were not related to the PVC MACT

at the time.

On May 20, 2011, EPA proposed the PVC MACT. 76 Fed. Reg. 29,528

(May 20, 2011). EPA accepted comments until August 2, 2011. 76 Fed. Reg.

42,613 (July 19, 2011).

On February 24, 2012, after the close of the comment period and about six

weeks before issuing the final Rule, EPA placed in the docket a memorandum

revising the MACT Floor Analysis for the PVC production source category

relying, in part, on the data obtained in response to the information requests sent to

VCM and EDC production facilities. See R. Docket No. EPA-HQ-OAR-2002-

0037-0193 at 6 (J.A. ___).

Between June 14 and June 18, 2012, Industry Petitioners petitioned this

Court to review the Rule. Vinyl Institute Petition for Review, Docket Number

(“DN”) 1379252; PolyOne Corp. Petition for Review, DN 1378882; Saint-Gobain

Corp. and CertainTeed Corp. Petition for Review, DN 1379261; Oxy Vinyls, LP

Petition for Review, DN 1379299 (J.A. __-__).

On June 18, 2012, Petitioner Vinyl Institute and others petitioned for

reconsideration and to stay the Rule pending reconsideration with EPA. See R.

Docket No. EPA-HQ-OAR-2002-0037-0569 (J.A. ___); R. Docket No. EPA-HQ-


12

OAR-2002-0037-0568 (J.A. ___); see R. Docket No. EPA-HQ-OAR-2002-0037-

0217 (J.A. ___). VI’s petition noted EPA’s failure to provide notice and comment

on the data and methodology used to set limits for certain HAPs among other

issues.

On September 28, 2012, EPA granted administrative reconsideration “on at

least the following: Petitioners’ claims that the public was not afforded a

reasonable opportunity to comment on emission limits in the final rule for process

vents, process wastewater and stripped resin for major and area sources.” R.

Docket No. EPA-HQ-OAR-2002-0037-0564 (J.A. ___). EPA further stated “[w]e

are continuing to review the other issues in the petitions for reconsideration and

intend to take final action on all issues no later than the date we take final action on

the issues for which we are granting reconsideration . . . .” Id. EPA did not rule on

the request for a stay.

In granting reconsideration, EPA stated its intent “to issue a Federal Register

notice initiating public review and comment on the issues for which we are

granting reconsideration.” Id. However, EPA has not, in the 21 months since

granting reconsideration, published such a notice. Instead, EPA embarked on a

four-year excursion for new data in order to propose new emission limits, see, e.g.,

R. Docket No. EPA-HQ-OAR-2002-0037-0543 (J.A. ___), that EPA now believes

it will conclude with a final Rule by April 2016. EPA Response in Opposition to


13

Stay Motions (“EPA Opp.”), DN 1487854, at 6 (J.A. ___). In the meantime,

existing facilities must come into compliance with the Rule by April 17, 2015.

C. The Rule and Its Genesis

The PVC MACT regulates facilities that produce PVC resins via a batch

manufacturing process in which VCM is polymerized as a homopolymer, or

copolymerized with varying amounts of a co-monomer, such as vinyl acetate. 76

Fed. Reg. at 29,531. Generally, the Rule establishes numerical limits for emissions

from stripped resins, process wastewaters, process vents, equipment leaks and

equipment openings.

EPA initially determined that there were 17 PVC and Copolymer Production

facilities, producing over 160 different PVC resins operating in Delaware, Illinois,

Kentucky, Louisiana, Michigan, Mississippi, New Jersey, and Texas. R. Docket

No. EPA-HQ-OAR-2002-0037-0099 at 1-2 (J.A. ___). Since the Rule was

promulgated, EPA has identified two additional facilities. See R. Docket No.

EPA-HQ-OAR-2002-0037-0593 (J.A. ___); R. Docket No. EPA-HQ-OAR-2002-

0037-0594 (J.A. ___). EPA estimates that the Rule will reduce pollutant emissions

from these facilities by a total of 262 tons per year. 77 Fed. Reg. at 22,897.

1. Process Wastewater Limits

In its first Section 114 Requests to the PVC industry in 2009, EPA did not

require actual sampling of wastewater streams. Instead, it asked for any available


14

information, including sample results or engineering estimates, for HAPs and

volatile organic compounds in wastewater. See R. Docket No. EPA-HQ-OAR-

2002-0037-0066 (J.A. __). Given that the Part 61 NESHAP did not require such

sampling, industry had very little data on hand.

Oxy Vinyls, LP (“OxyVinyls”)’s Deer Park, Texas, facility is an “area”

source. When OxyVinyls submitted its response to the Section 114 Request, it

mistakenly reported an acetaldehyde value of 0.018 parts per million (“ppm”) at

Deer Park. The data point came from an emission source that is not subject to the

PVC MACT standard (i.e., not from a process wastewater stripper, which would

have been the correct source). Other companies submitted available data or

engineering estimates from their facilities to EPA.

When EPA issued the proposed Rule, it did not use any of the wastewater

data or estimates submitted to it. Instead, EPA proposed 10 parts per million by

weight (“ppmw”) limit for vinyl chloride and a 1,000 ppmw limit for the 75 HAPs,

including vinyl chloride, listed in Table 9 of the HON Rule. See 76 Fed. Reg. at

29,534–35, 29,537. Following the close of the comment period, however, and

without any notice to industry, EPA changed completely its approach to

wastewater limits.

The Rule contains two emission limits for process wastewater: one for vinyl

chloride (not at issue here), the other for a total of the 30 other HAPs associated


15

with PVC production, minus vinyl chloride. EPA set the non-vinyl chloride

TOHAP limit at 110 ppm for existing major sources and 0.018 ppm for existing

area sources and all new sources—limits that are approximately ten times lower for

major sources than in EPA’s proposed rule, and approximately 55,000 times lower

for existing area sources. 77 Fed. Reg. at 22,854. These limits came as a surprise

to the industry, as both the limits and the conceptual approach were in no way a

logical outgrowth of EPA’s Proposal.

In addition to being significantly lower than the proposed limits, EPA

calculated the Rule’s limits with insufficient and faulty data. Because EPA had not

required actual sampling of wastewater streams in its Section 114 Requests, the

data available to set the limits were wastewater HAP and volatile organic

compounds concentration data that industry had previously collected or estimated

for other purposes. The Agency discarded all but two of the estimates, and used

whatever sampling information it had on hand. As a result, EPA used only seven

individual HAP values, including the erroneous 0.018 ppm data point from the

Deer Park facility, to calculate the major source non-vinyl chloride TOHAP limit

for process wastewater. For area sources, there was only one data point for one

compound used to set the composite thirty-compound limit—the erroneous 0.018

ppm figure for acetaldehyde. The Vinyl Institute and OxyVinyls notified EPA of

the mistake upon review of the Rule pre-publication to no avail.


16

EPA expected process wastewater to contain over 30 separate HAPs, 77 Fed.

Reg. 22,868, and knew that it had very little usable data in its possession. Once

EPA changed its approach, it should have directed Industry to obtain additional

samples.

The Industry had no notice or opportunity to comment on either the non-

vinyl chloride TOHAP wastewater standards, or EPA’s methodology for

calculating these limits. Consequently, it did not have an opportunity to point out

these errors or EPA’s reliance on faulty and insufficient data before the Rule

became final.

After reconsideration was granted, the industry conducted, at EPA’s

direction, a thirty-day sampling campaign for HAP in process wastewater and

provided the results to EPA by May of 2013. For area sources, re-calculating the

non-vinyl chloride TOHAP limit with the correct data from the Deer Park facility,

using EPA’s methodology, would result in a limit in the range of 43 ppm—more

than three orders of magnitude higher than the current Rule’s 0.018 ppm limit. The

limits for major sources also will change, as EPA failed to account for the

differences in copolymer chemistry and that certain HAPs behave differently in

water.


17

2. Emission Limits for PVC-Combined Process Vents

The Rule requires routing of all vent streams above the prescribed limits at a

PVC facility through a closed vent system to a control device. Emission standards

or limits on these streams are imposed from the outlet of the control device, a

thermal oxidizer or vent gas absorber (“VGA”), and apply at all times, including

during startup and shutdown of operations. 40 C.F.R. § 63.11925(a).

Several PVC production facilities share process vent and other control

devices with facilities in other source categories, including facilities that are in the

EDC and VCM production industry, that are subject to the HON, MON or others

rules. These PVC-combined facilities process their PVC vent streams in large

thermal oxidizers designed to handle the flow from multiple facilities. The first

Section 114 Request did not differentiate between these facilities and stand-alone

PVC facilities. Indeed, EPA directed that the vent gas from the PVC-only process

be isolated from the non-PVC vent gases generated by the co-located non-PVC

facilities during the tests. Combined facilities had to add a large amount of natural

gas to their vent streams in order for the thermal oxidizer to function correctly. As

a result, the process vent data submitted to EPA was not representative of actual

operating conditions.

EPA’s Proposal set a single emissions limit for all process vents. In its

comments, the PVC industry urged EPA to postpone finalization of the PVC


18

MACT until the Agency completed its review of the EDC/VCM regulations. R.

Docket No. EPA-HQ-OAR-2002-0037-0146 at 44-45 (J.A. __). In the final rule,

EPA set separate limits for PVC-only and combined process vents based in part on

the testing data it had received for developing an EDC/VCM MACT.

The preamble to the final PVC MACT indicates that facilities in a different

source category controlling vent streams from PVC and other facilities must

comply with all rules applicable to their common control device, whether it is the

HON Rule, the PVC MACT, or another rule. EPA explained that “[m]ultiple

standards applicable to one emission point for the same pollutant are not

necessarily ‘conflicting’ or ‘inconsistent.’” 77 Fed. Reg. at 22,865. In contrast,

Section 63.11865 of the Rule expressly states that the PVC MACT does not apply

to chemical manufacturing process units that produce VCM or other raw materials

used to produce PVC. 40 C.F.R. § 63.11865.

The emission limits for combined process vents were a surprise, not only to

the PVC industry, but to the co-located facilities subject to the other regulatory

schemes that now must comply with all applicable limits. EPA had never

indicated it was changing its approach to the process vent limits. Indeed, the data

upon which EPA ultimately relied was not entered into the record until less than

three weeks before the Administrator signed the final Rule and well after the close

of the comment period. See, e.g., R. Docket No. EPA-HQ-OAR-2002-0037-0166


19

(J.A. ___). Thus, EPA adopted the final PVC-only and PVC-combined limits

without the required notice and comment and using data not properly entered into

the record.

This lack of notice is critical as the Agency acknowledged that it had a very

limited data set with which it calculated the PVC-combined limits. See R. Docket

No. EPA-HQ-OAR-2002-0037-0193 at 5-7 (J.A. __). Consequently, EPA has not

demonstrated that the PVC-combined limits accurately reflect the actual

performance achieved by the best performing sources. EPA’s sixth Section 114

Request, issued May 15, 2014, directs certain combined facilities to conduct

additional Process vent sampling to fill data gaps, and reflects EPA’s admission

that additional data is necessary to develop accurate PVC-combined process vent

limits.

3. Emission Limits for Vent Gas Absorbers

The Rule’s limits for PVC-only process vents, which are presented in Tables

1 and 2 in the Rule as “[e]mission limits at 3 percent oxygen, dry basis,” assume

that thermal oxidizers are used as the control device, 40 C.F.R. § 63.11945(d)

(stating that the 3% O2 correction only applies to combustion devices).

Nevertheless, the same limits apply to facilities that use non-combustion control

devices and provide no method to account for difference in outlet volume relative

to units of PVC produced. This oversight severely impacts three PVC facilities


20

that use VGA as VCM recovery systems, which is a radically different control

technology.

Unlike a thermal oxidizer, VGAs are not combustion devices. Accordingly,

they have significantly different emissions to the atmosphere. Dioxins,

hydrochloric acid, and greenhouse gases are not produced by VGA technology.

The primary measurable HAP from the VGA is isooctane, which is used to absorb

and remove VCM from the vent stream and send it back to the production process.

Critically, the outflow from the VGA is intermittent and occurs at a very low rate.

In contrast, the outlet volume flow from a thermal oxidizer is more than 100 times

that from a VGA. As a result, the concentration value for all HAPs or total

hydrocarbons (“THC”) measured from intermittent VGA emissions is relatively

high, but the actual mass emission rate is extremely low.

In its comments on the proposed rule, Industry argued the Agency should

recognize that VGAs are a “recovery” control technology. Industry requested that

VGAs be regulated as a separate subcategory with equivalent MACT floor

performance limits based on mass emission rates. R. Docket No. EPA-HQ-OAR-

2002-0037-0146 at 52-54 (J.A. __). In the preamble to the Rule, EPA

acknowledges the VGA’s recovery function and notes that it did consider setting

alternatives but claimed it lacked “sufficient information provided from industry


21

on process vent stream flow rates and concentrations to develop or evaluate other

formats, such as mass emission rates.” 77 Fed. Reg. at 22,869.

Contrary to EPA’s assertion, data on stream flow rates and concentrations

for all process vents were provided to EPA as part of the response to the Agency’s

Section 114 Request. Flow rate and concentration data for each device, including

for VGAs, can be found in the various spreadsheets submitted to EPA as part of

each PVC facility’s stack sampling submission and posted to the rulemaking

docket as R. Docket No. EPA-HQ-OAR-2002-0037-0107 (J.A. ___).

An extensive report of the stack sampling performed at each PVC facility

also was prepared by industry, describing in detail the sampling locations, quality

assurance and quality control steps, and sample collection and analytical

procedures. These reports, which were submitted as part of each Working Group

member’s Section 114 response, also provided flow rate and concentration

information, including THC.

EPA’s decision not to subcategorize VGA process vents, or to consider

alternative emissions limits for them, was arbitrary and capricious because the

reasons given were incorrect and unjustified. Additionally, EPA ignored the data it

had and did not adequately explain why the data submitted in the record was

insufficient.


22

4. Opening Equipment in Light of the Prohibition AgainstBypasses

Seeking to ensure that emissions streams are properly routed to the closed

vent system and delivered to the control device before any release to the

atmosphere, the Rule prohibits any “bypass” or diversion of such emissions from a

control device. In EPA’s view, most bypasses are caused by malfunctions, poor

design, operator error, or similar incidents, and thus, exempting such occurrences

from the requirement that MACT standards apply continuously is not justified. R.

Docket No. EPA-HQ-OAR-2002-0037-0185 at 10-26, 10-30 (J.A. __).

In order to ensure that PVC operators detect and identify bypasses, the Rule

requires the installation of a bypass flow indicator on valves and other components

that are capable of diverting a regulated vent stream away from the control device

directly to the atmosphere. In the alternative, facilities can use a car-seal or lock-

and-key to secure valves and other components in a non-diverting position, subject

to monthly inspections and recordkeeping. 40 C.F.R. § 63.11930(c).

There are thousands of valves and other pieces of equipment at each PVC

facility that are covered by these requirements. Many are opened frequently as

part of normal operations or periodic maintenance activities after equipment

opening requirements for evacuating the equipment have been met. Work practice

standards such as the Rule’s equipment opening requirements are appropriate

where a HAP “cannot be emitted through a conveyance designed and constructed


23

to emit or capture such pollutant, or that any requirement for, or use of, such a

conveyance would be inconsistent with any Federal, State or local law.” 42 U.S.C.

§ 7412(h)(2)(A). Residual HAP present at the time of equipment and valve

openings used for batch and maintenance operations cannot be routed to a control

device, hence the need for standards and procedures to ensure the equipment or

valve contains the lowest possible level of HAPs or “is no longer in HAP service,”

before opening.

Pursuant to the Part 61 NESHAP, longstanding industry practice has been to

clear PVC process equipment using either a vacuum system, nitrogen sweep, or

hydraulic displacement, and venting the regulated “waste gas” or “exhaust gas”

streams to the control device before the equipment is opened to atmosphere. The

PVC MACT effectively adopts the Part 61 equipment opening requirements. 77

Fed. Reg. at 22,885. Thus, opening valves to perform routine maintenance, or to

access sampling points or connectors after clearing the process component of HAP

in accordance with Section 63.11955, should not now constitute a violation of the

Act. However, 40 C.F.R. § 63.11930(c) states:

For each closed vent system that contains a bypass as defined in§63.12005 (e.g., diverting a vent stream away from the controldevice), you must not discharge to the atmosphere through the bypass.Any such release constitutes a violation of this rule.

As currently worded, the Rule does not distinguish between the opening of a

valve for maintenance following equipment opening procedures, and true bypasses


24

when a valve opens and releases a normally-contained vent stream. In addition,

and contrary to the Part 61 NESHAP or more recent promulgations by the Agency,

cf. Oil and Natural Gas Sector: New Source Performance Standards and National

Emission Standards for Hazardous Air Pollutants Reviews, 77 Fed. Reg. 49,490,

49,551 (Aug. 16, 2012); National Emission Standards for Hazardous Air Pollutant

Emissions: Group IV Polymers and Resins; Pesticide Active Ingredient

Production; and Polyether Polyols Production, 79 Fed. Reg. 17,340, 17,378

(March 27, 2014), the PVC MACT does not exempt these valves, which are

needed to safely maintain process equipment and cannot be opened without first

complying with the equipment opening provisions, from the bypass prohibition.

As to the new requirement to install a flow indicator, key lock or car seal on

the thousands of covered components at PVC facilities, nowhere in the Proposal or

Rule, or the voluminous background documents does EPA provide a rationale for,

or assess the cost-benefit of what is clearly a beyond-the-floor requirement. In

fact, the ambient air monitoring systems and procedures currently required of the

industry effectively provide the real-time indication EPA seeks with flow

indicators, and they provide more timely notification that an unauthorized emission

event has taken place than the monthly inspections now imposed in the final Rule.

Yet the Agency refused to consider the effectiveness of these existing, in-place

systems. Such a refusal is arbitrary and capricious and a violation of the Act.


25

5. Pressure Relief Devices (“PRDs”)

Under Section 63.11915(c) of the Rule, pressure relief devices (“PRDs”)

that discharge directly to the atmosphere must be equipped with release indicators

and an alert system that will notify an operator immediately and automatically

when the pressure relief device is open. These requirements are more stringent

than those achieved in practice by the best controlled similar source, and thus

constitute a “beyond the floor” standard whose achievability EPA must evaluate

after “taking into consideration the cost ... and any non-air quality health and

environmental impacts and energy requirements.” Sierra Club v. EPA, 353 F.3d

976, 980 (D.C. Cir. 2004) (quoting 42 U.S.C. § 7412(d)(2)).

In its comments on the proposed rule, the VI submitted information

demonstrating that release indicators for PRDs are unnecessary because multiple

systems and procedures already are in place at PVC facilities to perform the

function of identification and operator notification. R. Docket No. EPA-HQ-OAR-

2002-0037-0146 at 97-98 (J.A. ___). VI also submitted information indicating that

the cost to comply with the requirement would be between $3.5 and 7.0 million

without any corresponding emissions benefits. Id. at 98 (J.A. ___).

In adopting its Proposal, EPA stated that release indicators are necessary

because “[r]elease events from PRD have the potential to emit large quantities of

HAP, and a large number of these releases that may occur, may not be identified


26

and controlled in a timely manner, and may be due to repeat problems that have

not been corrected.” 77 Fed. Reg. at 22,882 (emphasis added). EPA specifically

instructed Industry not to include PRD information in the Section 114 Survey. As

a result, any conclusions EPA drew concerning the extent, frequency, and length of

PRD releases, as well as the cost-benefit analysis conducted by EPA to support the

Proposal, were incorrect and unsupported by the record.

In addition, the release indicator requirement is a solution in search of a

problem. Even assuming that enhanced notification of PRD releases is warranted,

nothing in the record suggests that release indicators will perform this function – to

promptly identify releases – more effectively than the systems and procedures

currently in use at PVC facilities. Indeed, EPA acknowledged that the requirement

would provide zero emission reductions. R. Docket No. EPA-HQ-OAR-2002-

0037-0195 at 17 (J.A. ___).

Notwithstanding the lack of benefits, the Agency determined that the

imposition of the release indicator and enhanced notification requirements was

warranted because the Agency estimated facility capital costs of $188,900 each

and annual costs of $26,900. However, EPA incorrectly applied a production

scaling factor, inappropriate to a sales scenario, to its estimate of $10,000 per PRD

indicator, and concluded that facilities could purchase the equipment at an 86%

volume discount.


27

D. Rulemaking Under the Clean Air Act

The CAA has procedures for the promulgation of emissions standards. See

42 U.S.C. § 7607(d)(1)(C); see also § 7412(d). However, since “a court may

reverse any such action found to be arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law,” 42 U.S.C. § 7607(d)(9), APA

jurisprudence applies. See North Carolina v. EPA, 531 F.3d 896, 906 (D.C. Cir.

2008); Motor Vehicle Mfrs. Ass’n v. EPA, 768 F.2d 385, 389 n.6 (D.C. Cir. 1985).

Under the CAA, notice of a proposed rule must be published in the Federal

Register “accompanied by a statement of its basis and purpose.” 42 U.S.C. §

7607(d)(3). The statute further requires that “all written comments and

documentary information . . . received from any person for inclusion in the docket

during the comment period shall be placed in the docket.” 42 U.S.C. §

7607(d)(4)(B)(i) (emphasis added). All information or data upon which a rule is

based must be placed in the docket as of the date of the promulgation. Id. at §

7607(d)(6)(C). Additionally, should there be any major changes to the

promulgated rule from the proposed rule, the promulgated rule must be

accompanied by “an explanation of the reasons for any major changes.” Id. at §

7607(d)(6)(A) (emphasis added).


28

STANDARD OF REVIEW

EPA rulemakings under the CAA are reviewed to determine whether the

Agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law. 42 U.S.C. § 7607(d)(9); Mossville Envtl. Action Now

v. EPA, 370 F.3d 1232, 1237 (D.C. Cir. 2004). On procedural grounds, a CAA

rule may only be vacated due to a failure to observe a procedural requirement if:

(1) the failure is arbitrary and capricious; (2) the reconsideration requirement has

been met; and (3) the error was “so serious and related to matters of such central

relevance to the rule that there is a substantial likelihood that the rule would have

been significantly changed if such errors had not been made.” 42 U.S.C. §

7607(d)(8); Utility Air Regulatory Group v. EPA, 744 F.3d 741, 747-48 (D.C. Cir.

2014).

ARGUMENT

I. PETITIONERS’ PROCEDURAL CHALLENGES ARE NOTBARRED BY THE RECONSIDERATION

After the Rule was issued, EPA granted Industry Petitioners’ and

Intervenors’ petitions for reconsideration because of lack of reasonable opportunity

to comment on certain emission limits in the Rule. R. Docket No. EPA-HQ-OAR-

2002-0037-0564 (J.A. ___). Petitioners raised other issues that EPA took under

advisement but for which EPA did not grant reconsideration. In granting

reconsideration, EPA determined the opportunity to comment was either


29

“impracticable” during the rulemaking or “arose after the period of public

comment” and that the lack of notice was “of central relevance to the outcome of

the rule.” See 42 U.S.C. § 7607(d)(7)(B). Upon granting reconsideration, the

Administrator is required under the CAA to “convene a proceeding for

reconsideration of the rule and to provide the same procedural rights as would have

been afforded had the information been available at the time the rule was

proposed.” Id.

Clearly, the information EPA relied upon to set the final limits is now

available in the record. Although EPA expressed its intention “to issue a Federal

Register notice initiating public review and comment on the issues for which we

are granting reconsideration” upon granting reconsideration, it did not do so. See

R. Docket No. EPA-HQ-OAR-2002-0037-0564 (J.A. ____) (emphasis added). No

Federal Register notice has been issued as EPA has done in other rulemakings.

See, e.g.,76 Fed. Reg. 28,318 (May 17, 2011). Rather, EPA embarked on a four

year excursion for new data and toward a new rule in 2016 without suspending the

current Rule. In contrast, EPA took and considered comments on the Proposal in

less than a year.

Under the guise of the “reconsideration,” EPA has issued Section 114

information requests for: (1) wastewater data from facilities that had participated in

the Rulemaking; (2) data related to HAP concentrations in stripped resin, process


30

wastewater, and process vents from two copolymer facilities from which it has

never obtained data, as well as from a newly operating facility; and (3) additional

process vent testing data from PVC sources “[i]n an effort to fill certain data gaps.”

EPA Motion to Continue Abeyance, DN 1482038 at 4 (J.A. __); R. Docket No.

EPA-HQ-OAR-2002-0037-0592 (J.A. ____); R. Docket No. EPA-HQ-OAR-2002-

0037-0593 (J.A. ____); R. Docket No. EPA-HQ-OAR-2002-0037-0594 (J.A.

____). EPA has not asked the public to comment on the limits it established in the

Rule.

The Act provides, in relevant part, that this Court may reverse “a CAA rule”

if the reconsideration requirements have been met. The fact that EPA granted

partial reconsideration does not bar judicial review in this case because: (1) EPA

completed reconsideration and is now embarked on a new rulemaking; (2)

alternatively, EPA failed to timely finish the reconsideration process as the CAA

requires; and (3) to bar review would deprive Industry Petitioners of any means of

seeking redress of the injuries they would face if subject to the limits in the current

Rule. Alternatively, the Court should exercise its equitable and statutory authority

to stay the Rule until the EPA process is completed.

A. Review is Not Barred Because EPA is Not Taking Comment onthe Existing Rule and Thus Reconsideration is Complete

The Act’s requirements relating to EPA’s action on the petition for

reconsideration have been satisfied. The Rule is effective and compliance is


31

required by April 2015. Moreover, as explained above, EPA has completed

reconsideration, and is now engaged in the process of promulgating a new Rule; it

is not providing the “procedural rights” that it denied before it issued the Rule.

The CAA states that the requirements reconsideration must be met before

this Court can reverse Agency action because of a failure to observe a procedure

required by law. 42 U.S.C. § 7607(d)(9)(D)(ii). The fact that EPA has granted

Petitioner’s petition for reconsideration satisfies this requirement. The Act then

requires EPA to convene a proceeding and to “provide the same procedural rights”

as would have been afforded if the information had been available at the time the

Rule was proposed. 42 U.S.C. § 7607(d)(7)(B). This has not been done. Rather,

EPA is collecting new data in order to propound new emission limits in an

amended or new rule. The record related to the current Rule is complete and it is

ripe for judicial review, thereby differentiating this case from Utility Air

Regulatory Group v. EPA, 744 F.3d 741 (D.C. Cir. 2014) (hereinafter “UARG”).

As the UARG court noted, objections raised for the first time in a petition for

Agency reconsideration may not be raised for judicial review, but “must await

EPA’s action on that petition.” Id. at 747. However, EPA has acted on the petition

for reconsideration: it granted it, in fact, more than 21 months ago, see R. Docket

No. EPA-HQ-OAR-2002-0037-0564 (J.A. ___), unlike UARG where the petitions


32

“remain pending before the Agency” at the time this Court conducted its review.

See UARG at 748.

If, however, EPA and Environmental Intervenors argue that the ongoing

EPA process must be concluded before judicial review is appropriate, the Court

should reject that argument. By requiring “the same procedural rights as would

have been afforded” had the Agency not erred, the Act does not allow EPA to

blithely proceed with new data collection and rulemaking for four years. More

importantly, in this instance, the April 17, 2015 compliance date means that such a

rigid interpretation would effectively bar Petitioners from the ability to seek legal

redress prior to being subject to the illegal limits in the Rule.

For example, the following facts compel the conclusion that the UARG

precedent should not bar the Court’s vacatur of the area and new source non-vinyl

chloride TOHAP wastewater limits: all parties agree that the limits are in error; all

parties agree that compliance with the existing area source limit is not possible

with any known air pollution controls; and EPA has admitted that it will not

promulgate a final rule correcting the error until after the compliance date for the

existing Rule. To not vacate the 0.018 ppm wastewater limits under these

circumstances would deprive Petitioners of their rights to judicial review under the

Act.


33

EPA should not be permitted to effectively preclude judicial review on the

grounds that it has not yet completed a lengthy rulemaking process stemming from

administrative reconsideration when the Agency is also unable to correct the error

in the existing rule before the compliance date. However, even if Industry

Petitioners must await the conclusion of the entire rulemaking process to challenge

EPA’s failures in giving notice and taking comment, EPA’s other errors set forth

herein are ripe for review. See UARG at 747.

B. In the Alternative, if the Process of Promulgating a New Rule isConsidered Part of “Reconsideration,” EPA’s Failure to TimelyFinish Reconsideration Violated the CAA

To the extent that any subsequent rulemaking process can be considered part

of “reconsideration,” a position that Petitioners reject, then EPA is in violation of

the CAA by failing to conclude reconsideration prior to the compliance date for the

Rule. This Court has held that the design and structure of a statute may imply, in

the absence of an explicit statutory deadline, a duty of timeliness requiring a

federal agency to finish a rulemaking. See, e.g., MCI Telecomm. Corp. v. FCC,

627 F.2d 322, 340 (D.C. Cir. 1980) (finding implicit in the Communication Act of

1934 a “rule of reason” limiting the length of time for rate-making proceedings).

In the instant case, Sections 307 and 112 of the CAA make clear that Congress has

imposed on EPA a duty to timely complete a reconsideration process such that a


34

petitioner could promptly seek appellate redress before the compliance date

established for the challenged regulation.

Where the reconsideration takes an extended period and continues beyond

the compliance date, the regulated community will be placed in the untenable

position of having to satisfy a rule that has not been subjected to judicial review

and, as a matter of law, does not comply with the CAA. Further, once the

compliance date passes, industry potentially faces EPA enforcement actions or

citizens’ suits for non-compliance. And yet, according to EPA, the Court may not

review a matter that is subject to a pending reconsideration. Without a timely

conclusion of the reconsideration process, however, the regulated community is

denied its right to appellate review, while at the same time is forced to comply with

unachievable or unlawful rules.

It makes no sense to interpret the CAA in such a manner and to subject the

regulated community to this type of liability. The whole purpose underlying

reconsideration is to correct procedural errors in a rulemaking, which can timely be

completed in less than three years. After all, it only took EPA a year to accept,

analyze, and respond to the comments on all aspects of its proposed Rule. EPA’s

failure to satisfy the CAA’s timeliness requirements cannot bar review of the Rule

prior to its compliance date.


35

C. Alternatively, the Court Should Stay the Rule PendingReconsideration

If the Court determines to forego review of the Rule based on EPA’s

ongoing data collection effort, it should stay the Rule pending completion of that

process.2 See Portland Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011). All

of the Rule’s significant limits are being changed. EPA is collecting new

wastewater data for area and major sources. The limits for copolymer stripped

resins, which are based on data from a single facility, will change with the addition

of data collected from the two newly identified copolymer facilities. The PVC-

only process vent limit is being recalculated based on new data. EPA is collecting

process vent data from certain PVC-combined facilities. EPA has made clear that

current limits will be changed, yet Industry is still required to comply with the

current ones. Industry should not be required to invest in expensive new

equipment or otherwise alter, or shut down, manufacturing processes when “the

standards could likely change substantially.” 665 F.3d at 189.

The Court should use its general equitable authority under the

Administrative Procedure Act (“APA”) to stay these limits pending the issuance of

a new rule. 5 U.S.C. § 705 (providing that, “as may be required and to the extent

2 The motions panel denied without prejudice the VI’s and OxyVinyls’ motions fora judicial stay. Per Curium Order (May 19, 2014) (stating that “these motions aredenied without prejudice to their renewal before the merits panel to which theseconsolidated cases are assigned”).


36

necessary to prevent irreparable injury, the reviewing court . . . may issue all

necessary and appropriate process to postpone the effective date of an agency

action or to preserve status or rights pending conclusion of the review

proceedings”). As a general matter, courts of equity may exercise power to

remedy injustices where a party lacks an adequate remedy at law. See Holland v.

Florida, 560 U.S. 631, 650 (2010) (holding that “courts of equity…relieve

hardships which, from time to time, arise from a hard and fast adherence to more

absolute legal rules, which, if strictly applied, threaten the evils of archaic

rigidity”). This case falls squarely into this narrow and rare set of instances where

the Court must stay these limits in order to prevent harm to Petitioners for no

reason other than “archaic rigidity” in this particular circumstance.

The equities at issue are stronger than those in Portland Cement where the

Court stayed one aspect of a CAA rule pending completion of EPA’s

reconsideration. In Portland Cement, the Court noted that EPA had “conceded that

it ‘did not give sufficient notice’ of those standards and has granted PCA’s request

for reconsideration, but it denied PCA’s request for a stay.” 665 F.3d at 189.

However, “[b]ecause EPA will now be receiving comments for the first time, the

standards could likely change substantially. Thus, industry should not have to

build expensive new containment structures until the standard is finally

determined.” Id.; see also Natural Res. Def. Council (NRDC) v. EPA, 489 F.3d


37

1250, 1261 (D.C. Cir. 2007) (vacating the rule under review because of the

“likelihood (if not certainty) that the Boilers Rule will change substantially….”).

Here, EPA has admitted that the numerical limits for process wastewater and

process vents were adopted without the required notice and comment. EPA

acknowledges that the wastewater limit (for both area and major sources) is based

in part on erroneous or incomplete data. EPA Opp. at 10-11 (J.A. __). Indeed,

EPA is collecting data in order to change two-thirds of the Rule’s numerical limits.

A stay of the limits is necessary and appropriate.

II. THE ADOPTION OF THE PROCESS WASTEWATER LIMITS WASFATALLY FLAWED

A. Industry Petitioners Were Denied Notice and Comment

The CAA requires that EPA provide notice of proposed rulemaking and

provide for a period of public comment. 42 U.S.C. § 7607(d)(3). EPA admitted:

(1) that it failed to provide for public comment on the process wastewater limits;

and (2) that its failure was “of central relevance to the outcome of the rule” when it

granted reconsideration since those are the two statutory requirements. See 42

U.S.C. § 7607(d)(7)(B). Therefore, this limit is fatally flawed.

Furthermore, there was no opportunity to comment on the final process

wastewater limits. The Rule establishes limits for non-vinyl chloride TOHAP in


38

process wastewater at the regulated facilities.3 In the proposed rule, EPA proposed

10 ppmw limit for vinyl chloride and a 1,000 ppmw limit for the 75 HAPs,

including vinyl chloride, listed in Table 9 of the HON Rule. 76 Fed. Reg. at

29,534–35, 29,537. However, EPA rejected outright its proposed approach in the

final Rule. Instead, using faulty and incomplete data, as explained above, EPA set

a limit for total non-vinyl chloride organic HAP of 110 ppm (approximately 10

times lower than originally proposed) for major sources, and of 0.018 ppm

(approximately 55,000 times lower) for existing area sources and all new sources.

By its actions, EPA denied Industry Petitioners their rights to notice and comment

in violation of the statutory requirement.

The 110 ppm existing major source and 0.018 ppm area and new source

wastewater limits can by no means be considered a “logical outgrowth” of the

proposed Rule. See Env’tl Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir.

2005) (“[A]n agency’s proposed rule and its final rule may differ only insofar as

the latter is a ‘logical outgrowth’ of the former.”); see also Ne. Md. Waste Disposal

Auth. v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (holding that a final rule is a

“logical outgrowth” of a proposed rule “if interested parties ‘should have

anticipated’ that the change was possible, and thus reasonably should have filed

3 Process wastewater is water that comes in contact with any raw material,byproduct, or waste during any manufacturing process at a regulated facility. 40C.F.R. § 63.12005.


39

their comments on the subject . . . .” (quoting City of Waukesha v. EPA, 320 F.3d

228, 245 (D.C. Cir. 2003))).

Here, there was no indication that EPA was considering another approach to

process wastewater in the final Rule. The rulemaking background document only

discusses the establishment of a floor for vinyl chloride. See R. Docket No. EPA-

HQ-OAR-2002-0037-0100 at 20-23 (J.A. ___) and Attachment C (J.A. ___). The

proposed Rule only discusses the 1,000 ppmw threshold for the HON Rule

requirements, and the Agency’s only request for comments concerns wastewater

from maintenance activities. See 76 Fed. Reg. at 29,550. Indeed, EPA

categorically and emphatically endorsed its HON-based approach. See 76 Fed.

Reg. at 29,549.

Critically, even after the close of the comment period, EPA appeared to still

favor the HON threshold approach. Industry met with EPA on June 30, 2011, to

discuss the proposed Rule and the Agency’s additional data needs. The discussion

on wastewater focused on developing sufficient data for a vinyl chloride limit, and

Industry voluntarily agreed to submit additional data on vinyl chloride in

wastewater. See R. Docket No. EPA-HQ-OAR-2002-0037-0129 at 6, 9 (J.A. ___).

Reversal of the wastewater limit is required under the Act. 42 U.S.C. §

7607(d)(9)(D). EPA’s failure to grant notice and comment was arbitrary and

capricious. The reconsideration requirements have been met as noted above, and


40

there is a “substantial likelihood that the rule would have been significantly

changed” had EPA not erred, 42 U.S.C. § 7607(d)(8), as is demonstrated by EPA

having initiated a new rulemaking. EPA’s own actions in response to the

comments submitted in the reconsideration petition demonstrate that the

wastewater limits likely would have been different had Industry had the

opportunity to comment on the proposed emission level.

B. The Methodology for Regulating Process Wastewater WasArbitrary and Capricious

The methodology for calculating the non-vinyl chloride TOHAP emission

limit for process wastewater from existing sources was fundamentally flawed and

therefore, arbitrary and capricious. In addition to the reasons set forth above, this

challenge is properly before the Court because, although raised in the petition for

reconsideration, EPA did not grant reconsideration on this basis. There can be no

claim of an ongoing process.

As with most numerical limits in the Rule, EPA took the concentration

values reflecting the five best-performing facilities, calculated an average, and then

applied its upper predictive limit (“UPL”) statistical correction. The UPL

statistical method seeks to account for operational variability (i.e., the performance

a source actually achieved), that would not otherwise be addressed by the limited

snapshot of performance provided in small sample sets. For example, in setting the

non-vinyl chloride TOHAP limits for stripped resin, EPA sensibly obtained a


41

snapshot of non-vinyl chloride TOHAP performance by directing facilities to test

stripped resin for all 30 of the HAPs that constitute non-vinyl chloride TOHAP.

There are two problems with this approach for the wastewater: EPA used

insufficient data, and what it had did not address the full gamut of HAPs to be

regulated. EPA was well aware before it ever sought industry data for this Rule

that process wastewater may contain at least 22 HAPs. See R. Docket No. EPA-

HQ-OAR-2002-0037-0054 at 2-3 (J.A. ___). Indeed, EPA stated during a meeting

with the VI that it needed “plant-by-plant emissions information for each HAP

present in the process and for each specific emission point in the process.” See R.

Docket No. EPA-HQ-OAR-2002-0037-0037 at 2 (J.A. ___). In its commentary on

the Rule, EPA acknowledged that non-vinyl chloride TOHAP for process

wastewater includes at least 30 pollutants and the Rule requires that industry test

for 30 such pollutants. 77 Fed. Reg. at 22,868.

Because EPA changed from the HON threshold approach to actual limits so

late in the rulemaking, however, and because of the time constraints due to the

Settlement Agreement, it had on hand only the little information that had been

collected via the Section 114 survey: one value for acetaldehyde, three values for

methanol, two values for methyl isobutyl ketone and one value for EDC from five


42

sources.4 The remaining HAP data in the record were all developed through

engineering estimates and mass balance calculations.

As a result, the data set used by EPA to calculate the non-vinyl chloride

TOHAP limit omitted many critical HAPs present in wastewater. R. Docket No.

EPA-HQ-OAR-2002-0037-0193 at 42 (J.A. ___). Conceptually, EPA’s UPL

methodology cannot account for the actual performance and operational variability

of 30 HAPs, when not all are present in the dataset. This is especially problematic

because the HAPs present in wastewater, and their concentrations, vary widely

among resin recipes.

Curiously, EPA ignored sampling data submitted from the OxyVinyls

Pasadena plant in 2010, which indicated that other HAPs such as acetophenone,

chloroethane, chloroform, and formaldehyde, may be present in PVC facility

process wastewater. EPA does not claim that the four HAPs that were relied upon

are an appropriate proxy for the 30 HAPs it regulates in the Rule, nor can it.

Because the limit is of total HAPS, the exclusion of 27 out of 30 HAPS in

calculating the limit makes that limit arbitrary and capricious. Furthermore, EPA

4 It is difficult to recreate EPA’s data analysis. EPA stated in the Rule that “[o]uranalysis is documented in the memorandum, Analysis of HAP in Stripped Resinsand Wastewater for the Final PVC Rule. 77 Fed. Reg. at 22,868. No suchdocument can be found in the docket. Rather, data related to wastewater is in a“Technical Analysis Spreadsheet” at R. Docket No. EPA-HQ-OAR-2002-0037-0205 (J.A. ___) while data related to HAPs in stripped resins is in a differentdocument. See R. Docket No. EPA-HQ-OAR-2002-0037-0183 (J.A. ___).


43

did not explain why it did not use the sampling data submitted by OxyVinyls in its

calculations.

EPA may use “estimation either by sampling or by some other reliable

means,” when it does not possess complete data for the best performing sources.

Nat’l Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1152 (D.C. Cir. 2013)

(quoting Sierra Club v. EPA, 167 F.3d 658, 662 (D.C. Cir. 1999)). However,

“EPA bears the burden of demonstrating with substantial evidence that its estimate

is reasonable.” 734 F.3d at 1148. The Agency has not met this burden.

In addition, the promulgated major source limit does not reflect emissions

limitations that are actually achieved by the five best performing facilities, as

required by the CAA. See Sierra Club v. EPA, 353 F.3d 976, 984 (D.C. Cir. 2004).

EPA is requied to set maximum achievable control technology floors that the best

performing sources can expect to meet “every day and under all operating

conditions.” Mossville Envtl. Action Now v. EPA, 370 F.3d 1232, 1241-42 (D.C.

Cir. 2004). Meeting such a limit is not possible here, as the data used to set the

wastewater limits “ bears no rational relationship to the reality it purports to

represent.” Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 923 (D.C. Cir.

1998). There was insufficient representative data to reflect performance “every

day under all operating conditions” as required.


44

C. The Wastewater Non-Vinyl TOHAP Limit for Area Sources isClear Error and Must be Vacated

The area source non-vinyl chloride TOHAP wastewater limit is clear error.

No area source can achieve the limit, and therefore it violates the Clean Air Act.

See 42 U.S.C. § 7412(d)(5) (authorizing EPA to establish an alternative standard

for area sources that must be achievable by generally available control

technologies or management practices). Accordingly, the Court should vacate the

wastewater limit for area sources.

As a substantive matter, the 0.018 ppm limit is arbitrary and capricious for

the following reasons: it is based on a single data point that is insufficient for

setting a thirty-compound limit; it came from the wrong emission point; and it is

more than three orders of magnitude lower than it would be if calculated using

correct data.

All parties to this litigation, even EPA and Environmental Intervernors,

agree that the area source limit is fatally flawed. In response to OxyVinyls’

February 27, 2014 motion seeking a stay of the limit before the motions panel,

EPA acknowledged that the area source wastewater limit is based “in whole […]

on erroneously identified data.” EPA Opp. at 10 (J.A. __). This reliance on faulty

data, EPA conceded, “result[ed] in a flawed standard.” Id. at 3.

Environmental Intervenors similarly acknowledge the deficiencies in the

standard, stating that OxyVinyls “has made a plausible showing that the


45

Wastewater Limit for area source PVC plants . . . is based on a single erroneous

data point and that [OxyVinyls’] Deer Park plant is unable to comply with that

limit.” Environmental Intervenors’ Response in Opposition to Vinyl Institute and

OxyVinyls’ Motions to Stay, DN 1489074 at 2 (J.A. __).

As a procedural matter, OxyVinyls did not have an opportunity to correct

this error before the Rule became final because EPA did not propose or otherwise

offer for comment a wastewater limit based on a database with this data point. It

was not aware that EPA was setting new limits for wastewater—and, specifically,

that the Agency was doing so using incomplete and faulty data—until the final

Rule became available in pre-publication form. OxyVinyls notified EPA of the

mistake upon review of the Rule pre-publication, but EPA made no correction.

Consequently, OxyVinyls had no notice or opportunity to comment on either the

0.018 ppm non-vinyl chloride TOHAP standard, or EPA’s methodology for

calculating the limit.

As a practical matter, it is not possible for OxyVinyls’ Deer Park facility to

meet the 0.018 ppm limit. Based on the process wastewater sampling data

collected in 2013 in response to the second Section 114 Request in this

rulemaking, the Deer Park facility is the second best non-vinyl chloride TOHAP

performer among all sources in the PVC major and area source categories. The

facility still does not comply with the limit. Moreover, OxyVinyls has not been


46

able to identify any known control technology that would enable its facility to

achieve compliance with the 0.018 ppm limit for area sources. See Motion of Oxy

Vinyls, LP for an Order Staying the Area Source Wastewater Limit of the PVC

MACT Rule, DN 1481895 (“OxyVinyls Mot.”) at 5 and affidavit filed therein

(J.A. __).

The fact that no area source can comply with the 0.018 ppm limit renders the

limit illegal because EPA is required to promulgate emissions limitations for

existing sources that are achieved in practice by the best performing five sources.

42 U.S.C. §§ 7412(d)(2) – (3) (requiring that for categories or subcategories with

fewer than thirty sources, as is the case for PVC area sources, emissions standards

promulgated for existing sources must be achieved in practice by the best

performing five sources in the category or subcategory). In addition, once the

Administrator has exercised her discretion to set an alternative area source

standard, as EPA has done in this instance, the standard must be achievable by

generally available control technologies or management practices—which clearly

the 0.018 ppm area source wastewater limit is not.

In sum, the area source wastewater limit is arbitrary and capricious, was

promulgated without lawful notice and comment, and as such is legally

indefensible. To not vacate the area source wastewater limits under these

circumstances would deprive Petitioners of any means to redress harm that would


47

be caused by a limit all agree is illegal and unachievable. Petitioners have clearly

shown that this limit must be vacated under the Act or pursuant to this Court’s

equitable authority as described in Section I.C., supra.

III. EPA ACTED ARBITRARILY AND CAPRICIOUSLY IN SETTINGTHE PROCESS VENT LIMITS

Process vents combine vent streams from all operations within a PVC

process unit and route those streams through a closed vent system to an emissions

control device. 40 C.F.R. § 63.12005. EPA proposed an emissions limit for all

process vents. In the final Rule, EPA adopted two emission limits: one for PVC-

only and one for PVC-combined process vents. EPA determined that

subcategorization was appropriate because some plants vent streams from PVC

only operations while others combine PVC streams with streams from other

sources categories such as a co-located EDC or VCM facility. 77 Fed. Reg. at

22,850-51. According to EPA, co-located facilities subject to the rules for a

different source category must comply with the PVC MACT if it is more stringent,

even if the facility was not afforded notice or an opportunity to comment.

EPA erred in adopting the PVC-combined process vent emissions limit both

because it did not provide notice and allow comment and because the emissions

limits conflict with the requirements of other MACTs. EPA further erred when it

refused to further subcategorize PVC-only process vent emissions based on the


48

differences in emissions profiles between thermal and VCA control devices. Id. at

22,869.

A. Industry Petitioners Were Denied Notice and Comment

EPA granted reconsideration based on the lack of notice and comment “on

emission limits in the final rule for process vents. . . .” R. Docket No. EPA-HQ-

OAR-2002-0037-0564 (J.A. ___). Thus, EPA admitted that it denied industry

notice and comment in a manner that requires vacating the process vent limits.

See Section II.A, supra at 37.

Industry unquestionably was denied the opportunity to comment. EPA

proposed emission limits for process vents without subcategorizing them. As a

result, Industry addressed only the failure to subcategorize and not what limits

should be applied upon subcategorization. Furthermore, in adopting the final Rule,

EPA went beyond information submitted in comments and relied upon “additional

data submitted by industry after proposal.” 77 Fed. Reg. at 22,851. The additional

data was obtained by EPA through the survey portion of the Section 114 Request

in the delayed EDC/VCM MACT rulemaking, the results of which were not

received by EPA until after the close of the PVC MACT comment period. The

data was not placed in the public docket until January 24, 2012, less than three

weeks before the Administrator signed the Rule. See, e.g., EPA-HQ-OAR-2002-

0037-0166 (J.A. ___).


49

The results of the EDC/VCM MACT testing “were included in the MACT

floor analysis for PVC-combined process vents.” 77 Fed. Reg. at 22,871. In doing

so, EPA violated the CAA because it had not given notice and allowed comment.

Furthermore, since EPA adopted emissions limits for PVC-only and PVC-

combined process vents that are significantly different from the originally

proposed limits, both in their applicability and in their numerical limits, Industry

was not given proper notice of either set of limits, and it did not have the

opportunity to comment on them.

Reversal of the process vent limits is required. See 42 U.S.C. §

7607(d)(9)(D). EPA’s failure to grant notice and comment was arbitrary and

capricious. The reconsideration requirements have been met as noted above, and,

“there is substantial likelihood that the rule would have been significantly

changed” had EPA not erred. 42 U.S.C. § 7607(d)(8). EPA’s own actions in

response to the comments submitted in the reconsideration petition demonstrate

that the emissions limit likely would have been different had Industry had the

opportunity to comment on the proposed emission level. Accordingly, the Court

must vacate the emission limits for both PVC-only and PVC-combined process

vents.


50

B. The PVC-Combined Limits Must be Vacated Because They WereDeveloped Arbitrarily and Capriciously and Conflict With theRequirements of Other MACTs

EPA failed to “acknowledge and account for a changed regulatory posture”

that it created when it adopted vent limits that impact “a contemporaneous and

closely related rulemaking” as required. Portland Cement Association v. EPA, 665

F.3d at 187 (D.C. Cir. 2011). In this instance, EPA failed to address the fact that

the combined process vent limits apply to facilities outside the PVC source

category. Since the emissions in a combined plant are, at times, solely from a co-

located VCM, EDC, or other plant while at other times include those emissions

along with emissions from the PVC facility, the PVC MACT is regulating

emissions from VCM, EDC, and other plants. However, such facilities are covered

by different MACTs.

The Rule and the preamble are in conflict on the regulation of VCM and

EDC plants. Specifically, Section 63.11865 of the Rule expressly states that the

PVC MACT does not apply to chemical manufacturing process units that produce

VCM or other raw materials used to produce PVC. In contrast, the preamble to the

PVC MACT indicates that facilities in a different source category handling vent

streams from multiple facilities must comply with all rules applicable to their

common control device, whether it is the HON, the PVC MACT, or another rule.

77 Fed. Reg. at 22,865.


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If EPA intended for EDC/VCM or other MACT units to comply with the

new PVC MACT limits, then EPA has erred. In Portland Cement, the Court

observed that “it would certainly be arbitrary, as well as a violation of the CAA

itself, for EPA to set one standard based on data already placed in another source

category in light of the mutual exclusivity of the standards themselves.” Portland

Cement, 665 F.3d at 186.

Although the Portland Cement Court was addressing the relationship

between commercial and industrial solid waste incinerator requirements, on the

one hand, and MACT requirements on the other, the principle is relevant here. If

EPA can simply create new categories and related limits for existing MACTs in a

new MACT standard, there would be no meaning to the MACT source categories

or the development and procedural requirements imposed by the Act. Such a result

is particularly troublesome because none of the facilities in the EDC/VCM source

category had notice that they would be regulated by the PVC MACT.

Even if the Agency’s approach is permissible, the Rule is silent as to how

these requirements apply to non-PVC facilities. For example, the Rule establishes

its own methods to demonstrate continuous compliance with the process of vent

limits, but PVC-combined thermal oxidizers are already required to demonstrate

continuous compliance with the HON using separate parametric limits.


52

For these reasons, the PVC-combined limits are arbitrary and capricious and

should be vacated.

C. EPA’s Refusal to Subcategorize PVC-Only Process Vents Basedon VGA and Thermal Control Technologies Was Arbitrary andCapricious

There are two types of control devices for PVC-only process vents:

thermal oxidizers and VGA devices. The operation and emissions profiles from

the different control devices are radically different. The limits to emissions from

process vents in the final Rule assumed that thermal oxidizers would be used as the

control unit at all facilities subject to the Rule which is not true. EPA’s failure to

recognize the technological differences, and subcategorize, was arbitrary and

capricious.

In contrast to thermal control devices, VGA systems vent intermittently at

very low flow rates. This creates a relatively high concentration effluent stream,

notwithstanding the fact that the overall mass of the emissions is very low. A

VGA device is not a combustion device like a thermal oxidizer. It has a

significantly different emissions profile and outflow characteristics. See supra at

20.

EPA subcategorized emissions from PVC-combined and PVC-only process

vents on just these types of characteristics. In fact, EPA considered “setting

alternative formats” but failed to explain its refusal to do so. 77 Fed. Reg. at


53

22,869. EPA failed to explain why the differences between VGAs and thermal

oxidizers were not sufficient for subcategorizing VGAs. Rather, EPA claimed,

incorrectly, that it was without sufficient information to make a proper

determination regarding the use of VGAs. In fact, EPA had that information in its

possession. See 77 Fed. Reg. 22,869.5

EPA had emissions data from two Mexichem (PolyOne) facilities with VGA

devices that were submitted in March 2010. Other data on point were posted to the

rulemaking docket. See R. Docket No. EPA-HQ-OAR-2002-0037-0107 (J.A.

___). EPA is required to take a “hard look” at all available data to ensure that a

“reasonable connection” exists between the facts and regulatory solutions chosen

by the Agency. Small Refiner. Lead Phase-Down Task Force v. U.S. EPA, 705

F.2d 506, 520 (D.C. Cir. 1983); see also Portland Cement, 665 F.3d at 187

(citation omitted) (observing that agencies “have an obligation to deal with newly

acquired evidence in some reasonable fashion”). EPA never explained its decision

to ignore this relevant data.

EPA’s failure to subcategorize VGA process vents (or in the alternative, to

adopt emission limits in alternative format) was arbitrary and capricious. First,

EPA did not explain with reasonable specificity why the data was insufficient.

Second, the alleged lack of data goes to the ability to set an alternate emissions

5 EPA refers to PolyOne in responding to comments. PolyOne sold the plants toMexichem.


54

limit format, not to whether subcategorization is justified. EPA could have

requested additional data be submitted (but was constrained from doing so because

of the schedule set forth in the Settlement Agreement). EPA did not satisfy §

307(d) or “set forth the reasons for its actions.” See Ne. Maryland Waste Disposal

Auth. v. EPA, 358 F.3d 936, 949 (D.C. Cir. 2004); see also Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48-50 (1983). Additionally,

EPA violated its statutory duty to provide a reasonable justification for ignoring

that data. See Nat’l Lime Ass’n v. EPA, 627 F.2d 416, 452-54 (D.C. Cir. 1980).

Accordingly, the Court should vacate the PVC-combined process vent limits and

instruct EPA to consider subcategorization of VGA process vents.

IV. THE PROVISIONS CONCERNING BYPASSES FROM CLOSEDVENT SYSTEMS ARE ARBITRARY AND CAPRICIOUS,CONFLICT WITH THE EQUIPMENT OPENING PROVISIONS,AND ARE NOT ACHIEVABLE

The Rule seeks to “ensure that emissions streams are properly routed to the

closed vent system and delivered to the control device for reduction,” before any

release to the atmosphere. R. Docket No. EPA-HQ-OAR-2002-0037-0185 at 10-

25 (J.A. ___). Accordingly, the Rule prohibits any “bypass” or diversion of such

emissions from a control device. This requirement conflicts with another provision

that requires reduction, but not elimination, of HAPs in a control device before

opening equipment for maintenance. EPA erred when it failed to explain and

resolve this conflict.


55

Additionally, in order to ensure that PVC operators detect and identify

bypasses, the Rule requires the installation of a bypass flow indicator on valves

and other components that are capable of diverting a regulated vent stream away

from the control device directly to the atmosphere. In the alternative, facilities can

use a car-seal or lock-and-key to secure valves and other components in a non-

diverting position, subject to monthly inspections and recordkeeping. EPA erred in

adopting these provisions because they are beyond-the-floor requirements for

which EPA did not conduct the required cost and benefit analyses.

A. EPA Was Arbitrary and Capricious When it Prohibited BypassesEven in the Case of Maintenance

The final Rule prohibits any bypass or diversion of emissions from a

facility’s control device. R. Docket No. EPA-HQ-OAR-2002-0037-0185 at10-26

(J.A. ___). As EPA stated in response to Industry comments: “Our intent in this

final rule is that control devices will not be bypassed; therefore, use of the bypass

at any time to divert a regulated vent stream to the atmosphere would be a

deviation from the emissions standard.” Id. EPA refused to implement an

exemption for “maintenance activities.” Id.

This regulation is arbitrary and capricious, because, as worded, any opening

of one of the identified valves is a violation of the Rule, without exception, even if

it occurs during normal operations or routine maintenance, and after performing

the equipment opening steps required elsewhere under the Rule. See 40 C.F.R. §


56

63.11955. The bypass prohibition conflicts with the equipment opening

procedures of the Rule, and it appears that no maintenance or normal operational

activity involving the opening of a properly evacuated valve or other piece of

equipment can be performed without violating the Act, as allowed in all other

MACT standards.

EPA made no attempt to explain the conflict in the Rule language in Section

63.11955 governing equipment openings, which requires that almost all of the

HAPs be evacuated from equipment before it is opened, and the bypass provision,

which prohibits the discharge of any HAPs through an equipment bypass in a

closed system. See 40 C.F.R. § 63.11930(c). EPA merely responded to comments

with the claim that Industry had failed to identify the normal operation of any

valves that would run afoul of the bypass provisions during the rulemaking. This

is erroneous, because Industry submitted such a list. R. Docket No. EPA-HQ-

OAR-2002-0037-0146 at 66-67 (J.A. ___). However, even if Industry had failed

to provide such information, EPA is required to explain and resolve the conflict in

the two provisions. Since EPA has not resolved that conflict, the Rule is arbitrary

and capricious.

B. EPA Erred in Not Conducting a Beyond-the-Floor Analysis of theBypass Provisions

The Rule requires the installation of certain equipment to control emissions

that may bypass a control device and be vented to the atmosphere. Because the


57

bypass provisions represent beyond-the-floor limits, EPA was required to conduct

a beyond-the-floor analysis, including an examination of the costs and benefits

related to such beyond-the-floor requirements. EPA failed to do so and therefore

EPA acted arbitrarily and capriciously.

EPA recognized that the PVC industry has long been subject to a prohibition

against bypassing control devices except in certain emergency discharges under the

Part 61 NESHAP. See R. Docket No. EPA-HQ-OAR-2002-0037-0185 at 10-30

(J.A. ___). Under the Act, the VCM NESHAP prohibition against these bypasses

constitutes the MACT floor. See 77 Fed. Reg. at 22,885 (recognizing that the

VCM NESHAP constitutes the MACT floor level of control for reactor and

equipment openings).

The Act requires EPA to set standards that “shall not be less stringent” than

the emission controls “achieved by the best performing 5 sources,” the MACT

floor. 42 U.S.C. § 7412(d)(3)(B). As Judge Williams observed, “the statute’s use

of terms like ‘achieved’ and ‘controlled’ at the floor-setting stage urges EPA to

focus on what sources have actually done to ameliorate the pollution caused by

their particular set of inputs.” Portland Cement Ass’n, 665 F.3d 177, 196 (D.C.

Cir. 2011) (Williams, J., concurring). Section 112(d)(2) authorizes EPA to set

emissions standards that are the most stringent EPA finds to be “achievable.”


58

Otherwise known as “beyond-the-floor” standards, the “achievable” standards

obviously are more stringent than the § 112(d)(3) floor.

The CAA “requires that beyond-the-floor standards be achievable and

provides a framework for analyzing achievability, including consideration of cost,

energy requirements, and other factors.” Sierra Club v. EPA, 353 F.3d 976, 989

(D.C. Cir. 2004). This analysis has been deemed so critical that in the absence of

any type of quantification of benefits or costs, EPA may have “no basis for finding

that, ‘taking into account the cost,’ emissions reductions from pollution prevention

programs were ‘achievable’ as the statute uses the word.” Sierra Club v. EPA, 167

F.3d 658, 666 (D.C. Cir. 1999). No such analysis occurred here.

EPA cannot avoid the requirement of a beyond-the-floor analysis by

asserting that the monitoring of equipment and reporting of equipment

requirements are “compliance requirements.” 77 Fed. Reg. at 22,882 (“The

requirement to install indicators to identify and record the time and duration of

each pressure release is a compliance requirement to ensure the PRD requirements

in the final rule are met.”) Such a claim is contrary to EPA’s description of its

requirements as “specifically regulating bypass lines.” R. Docket No. EPA-HQ-

OAR-2002-0037-0185 at 21-102 (J.A. ___). Finally, such a claim is contradicted

by the CAA definitions of “emission limitation” and “emission standard” as:

…a requirement established by the . . . . Administrator whichlimits the quantity, rate, or concentration of emissions of air


59

pollutants on a continuous basis, including any requirementrelating to the operation or maintenance of a source to assurecontinuous emission reduction, and any design, equipment, workpractice or operational standard promulgated under this chapter.

42 U.S.C. § 7602(k) (emphasis added). Put simply, this broad language

encompasses any requirement to install a flow indicator, key and lock, or car-seal

since they related to operations to ensure continuous emissions reductions.

The Agency may believe that it can proceed pursuant to its alternative

authority, under 42 U.S.C. § 7414(a)(1)(C), to require the installation and use of

monitoring equipment. Such authority, however, at best would be limited to the

installation of flow indicators, and would not cover emission limitation measures

clearly intended to “limit[] the quantity, rate, or concentration of emissions of air

pollutants on a continuous basis,” such as car-seals and locks and keys. Moreover,

the inclusion of flow indicators with the other two approaches raises significant

questions as to whether flow indicators really are only intended for monitoring

rather than controlling emissions.

Given that PVC facilities are already prohibited from bypassing control

devices (subject to equipment opening standards), that nothing in the record

indicates that a PVC facility currently uses car-seals or flow indicators, and that

they are not required by the VCM NESHAP, this requirement constitutes a

beyond-the-floor standard for which EPA should have considered costs and other


60

factors. The Agency performed no such analysis even though it did so as part of its

consideration of PRDs.

V. THE PROVISIONS FOR PRESSURE RELIEF DEVICES AREARBITRARY AND CAPRICIOUS AND ARE NOT ACHIEVABLE

A PRD is “a safety device used to prevent operating pressures from

exceeding the maximum allowable working pressure of the process component.”

40 C.F.R. § 63.12005. The Rule makes a release of HAPs to the atmosphere from

a PRD “an immediate violation.” R. Docket No. EPA-HQ-OAR-2002-0037-0185

at 10-26 (J.A. ___). Furthermore, if a release occurs, the Rule requires leak

detection and repair monitoring within 5 days of such a release in order to ensure

that the PRD is properly reseated. Id. at 10-27.

These requirements are arbitrary and capricious because EPA failed to

“examine the relevant data and articulate a satisfactory explanation for its action

including a rational connection between the facts found and the choice made.”

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983) (internal quotation marks omitted); see also, Small Refiner. Lead Phase-

Down Task Force v. EPA, 705 F.2d 506, 520 (D.C. Cir. 1983). First, EPA ignored

the fact that by design, PRD releases from PVC facilities are infrequent, short, and

release a minimal amount of HAPs. Second, EPA cites no data in support even

though EPA had PRD release reports that had been filed with EPA as required by

the Part 61 NESHAP. R. Docket No. EPA-HQ-OAR-2002-0037-0146 at 97 (J.A.


61

___). Third, EPA had no Section 114 data on PRD releases because it had

specifically instructed Industry not to provide such data in Form F and Form K-1-b

of the Section 114 Survey. R. Docket No. EPA-HQ-OAR-2002-0037-0066 (J.A.

___). Finally, EPA acknowledged that the requirement would provide zero

emissions reductions. R. Docket No. EPA-HQ-OAR-2002-0037-0195 at 17 (J.A.

___).

Rather than examine relevant data and articulate a satisfactory explanation

for these requirements, EPA inaccurately claimed, in responding to comments, that

“we disagree with the commenter that reports of PRD discharges have been

provided to us. We also requested this type of information in the Section 114

survey Requests and received no indication that any such releases occurred over

the time period requested.” Id. at 10-28. As noted, EPA did not request PRD

release information from Industry, nor should it have had to. Information on these

releases is already reported to EPA within 10 days under the Part 61 NESHAP. 40

C.F.R. § 61.65(a). Accordingly, EPA has a comprehensive database of

information with which to assess the extent and scope of PRD releases within the

industry.

EPA also rejected the commenters’ criticism of the Rule on grounds that

Industry did not identify specific systems or procedures for EPA to consider. EPA

also argued that the Industry “did not suggest that EPA adopt any type of


62

monitoring or recordkeeping requirement for PRD discharges, and . . . do not

support a conclusion that all PVC facilities currently install and use effective

means to detect and record PRD discharges for all of their PRD.” 77 Fed. Reg. at

22,881-82. This view is in sharp contrast with EPA’s acknowledgement “. . . that

the PVC industry typically installs area monitors in addition to rupture discs in

series with relief values . . . . [and] that multiple systems and procedures exist to

detect and remedy releases from PRD . . . .” Id. at 22,881. EPA’s failure to collect

and consider relevant data and its inaccurate response to comments regarding the

PRD regulations is arbitrary and capricious. The record and the Agency’s

statements constitute an insufficient rational basis to impose the new PRD

requirement.

VI. VACATUR OF THESE EMISSION LIMITS IS THE APPROPRIATEREMEDY

For the reasons stated above, the non-vinyl chloride TOHAP emission limits

for wastewater and process vents are so flawed that the Agency will not be able to

“justify those choices by shoring up its reasoning on remand.” Natural Res. Def.

Council (NRDC) v. EPA, 489 F.3d 1364, 1374 (D.C. Cir. 2007). Indeed, EPA

expects its ongoing data collection will result in new limits. Similarly, the

Agency’s deficient beyond-the-floor analysis for PRDs and bypasses cannot be

rectified on remand because these requirements are not achievable: the bypass

requirements would prohibit all maintenance activities, and neither the bypass nor


63

the PRD requirements provide any emission reductions but impose significant

costs. Consequently, these regulations must be vacated; leaving them in place

would be more disruptive than vacating them, see Allina Health Servs. v. Sebelius,

746 F.3d 1102, 1110 (D.C. Cir. 2014) (citing Allied–Signal, Inc. v. U.S. Nuclear

Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993)), as many affected

sources would be unable to comply and may be forced to cease operations or risk

significant enforcement penalties.

CONCLUSION

For the foregoing reasons, the Court should vacate and remand to EPA the

provisions of the PVC MACT rule discussed above.








64






65

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Joint Opening Brief of Industry

Petitioners complies with the type-value limitation of Fed. R. App. P. 32(a)(7)(B)

and District of Columbia Circuit Rule 32(a) because this brief contains 13,992

words, excluding those parts of the Brief exempted by the rules.

This Brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type and style requirements of Fed. R. App. P. 32(a)(6) because

this Brief has been prepared in a proportionally spaced typeface using Microsoft

Office Word 2010 in 14 point Times New Roman font.

July 1, 2014 /s/ Douglas J. BehrDouglas J. Behr (Bar No. 163998)Counsel for Petitioner Vinyl Institute, Inc.


66

CERTIFICATE OF SERVICE

I hereby certify that on this the 1st day of July, 2014, the foregoing Joint

Opening Brief of Industry Petitioners was served electronically through the Court’s

CM/ECF filing system on the attorneys for the parties at their email addresses of

record and two copies were served upon the following counsel by first class mail,

postage prepaid:

James S. PewEmma C. CheuseEarthjustice1625 Massachusetts Avenue, N.W.Suite 702Washington, DC 20036Tel: (202) [email protected]@earthjustice.org

Counsel for Environmental PetitionersMossville Environmental Action Now,Air Alliance Houston, LouisianaEnvironmental Action Network, andSierra Club

Angeline PurdyEnvironmental Defense SectionEnvironment & Natural Resources

DivisionUnited States Department of JusticeP.O. Box 7611Washington, DC 20044Tel: (202) [email protected]

Counsel for United StatesEnvironmental Protection Agency

July 1, 2014 /s/ Douglas J. BehrDouglas J. Behr (Bar No. 163998)Counsel for Petitioner Vinyl Institute, Inc.


Statutory and Regulatory Addendum


TABLE OF CONTENTS

5 U.S.C. § 705........................................................................................ Addendum-1

42 U.S.C. §§ 7412(a)(1) & (a)(2) .......................................................... Addendum-2

42 U.S.C. §§ 7412(d)(1)-(3) & 5 ........................................................... Addendum-3

42 U.S.C. § 7412(h) ............................................................................... Addendum-5

42 U.S.C. § 7412(q)(1)........................................................................... Addendum-6

42 U.S.C. § 7414(a)(1)(C) ..................................................................... Addendum-7

42 U.S.C. § 7602(k) ............................................................................... Addendum-8

42 U.S.C. § 7607(b) ............................................................................... Addendum-9

42 U.S.C. § 7607(d)(1)(C) ................................................................... Addendum-10

42 U.S.C. §§ 7607(d)(3)-(9) ................................................................ Addendum-11

40 C.F.R. § 63.100(j)(4)....................................................................... Addendum-14

40 C.F.R. § 63.11865 ........................................................................... Addendum-15

40 C.F.R. § 63.11875(a)....................................................................... Addendum-16

40 C.F.R. 63.11915(c).......................................................................... Addendum-17

40 C.F.R. 63.11925(a).......................................................................... Addendum-18

40 C.F.R. § 63.11930(c)....................................................................... Addendum-19

40 C.F.R. § 63.11945(d)(1).................................................................. Addendum-20

40 C.F.R. § 63.11955 ........................................................................... Addendum-21

40 C.F.R. § 63.12005 (excerpts) .......................................................... Addendum-22


Addendum-1

5 U.S.C. § 705

§705. Relief pending review

When an agency finds that justice so requires, it may postpone the effective date of action takenby it, pending judicial review. On such conditions as may be required and to the extent necessaryto prevent irreparable injury, the reviewing court, including the court to which a case may betaken on appeal from or on application for certiorari or other writ to a reviewing court, may issueall necessary and appropriate process to postpone the effective date of an agency action or topreserve status or rights pending conclusion of the review proceedings.


Addendum-2

42 U.S.C. §§ 7412(a)(1) & (a)(2)

§ 7412 - Hazardous air pollutants

(a) Definitions

For purposes of this section, except subsection (r) of this section—

(1) Major source

The term “major source” means any stationary source or group of stationary sources locatedwithin a contiguous area and under common control that emits or has the potential to emitconsidering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or25 tons per year or more of any combination of hazardous air pollutants. The Administrator mayestablish a lesser quantity, or in the case of radionuclides different criteria, for a major sourcethan that specified in the previous sentence, on the basis of the potency of the air pollutant,persistence, potential for bioaccumulation, other characteristics of the air pollutant, or otherrelevant factors.

(2) Area source

The term “area source” means any stationary source of hazardous air pollutants that is not amajor source. For purposes of this section, the term “area source” shall not include motorvehicles or nonroad vehicles subject to regulation under subchapter II of this chapter.


Addendum-3

42 U.S.C. §§ 7412(d)(1)-(3) & 5

§ 7412 Hazardous air pollutants

* * *

(d) Emissions standards

(1) In General

The Administrator shall promulgate regulations establishing emission standards for eachcategory or subcategory of major sources and area sources of hazardous air pollutants listed forregulation pursuant to subsection (c) of this section in accordance with the schedules provided insubsections (c) and (e) of this section. The Administrator may distinguish among classes, types,and sizes of sources within a category or subcategory in establishing such standards except that,there shall be no delay in the compliance date for any standard applicable to any source undersubsection (i) of this section as the result of the authority provided by this sentence.

(2) Standards and methods

Emissions standards promulgated under this subsection and applicable to new or existing sourcesof hazardous air pollutants shall require the maximum degree of reduction in emissions of thehazardous air pollutants subject to this section (including a prohibition on such emissions, whereachievable) that the Administrator, taking into consideration the cost of achieving such emissionreduction, and any non-air quality health and environmental impacts and energy requirements,determines is achievable for new or existing sources in the category or subcategory to whichsuch emission standard applies, through application of measures, processes, methods, systems ortechniques including, but not limited to, measures which—

(A) reduce the volume of, or eliminate emissions of, such pollutants through processchanges, substitution of materials or other modifications;

(B) enclose systems or processes to eliminate emissions;

(C) collect, capture or treat such pollutants when released from a process, stack,storage or fugitive emissions point;

(D) are design, equipment, work practice, or operational standards (includingrequirements for operator training or certification) as provided in subsection (h) ofthis section; or

(E) are a combination of the above.

None of the measures described in subparagraphs (A) through (D) shall, consistent with theprovisions of section 7414(c) of this title, in any way compromise any United States patent orUnited States trademark right, or any confidential business information, or any trade secret orany other intellectual property right.


Addendum-4

(3) New and existing sources

The maximum degree of reduction in emissions that is deemed achievable for new sources in acategory or subcategory shall not be less stringent than the emission control that is achieved inpractice by the best controlled similar source, as determined by the Administrator. Emissionstandards promulgated under this subsection for existing sources in a category or subcategorymay be less stringent than standards for new sources in the same category or subcategory butshall not be less stringent, and may be more stringent than—

(A) the average emission limitation achieved by the best performing 12 percent of theexisting sources (for which the Administrator has emissions information),excluding those sources that have, within 18 months before the emission standardis proposed or within 30 months before such standard is promulgated, whicheveris later, first achieved a level of emission rate or emission reduction whichcomplies, or would comply if the source is not subject to such standard, with thelowest achievable emission rate (as defined by section 7501 of this title)applicable to the source category and prevailing at the time, in the category orsubcategory for categories and subcategories with 30 or more sources; or

(B) the average emission limitation achieved by the best performing 5 sources (forwhich the Administrator has or could reasonably obtain emissions information) inthe category or subcategory for categories or subcategories with fewer than 30sources.

* * *

(5) Alternative standard for area sources

With respect only to categories and subcategories of area sources listed pursuant to subsection(c) of this section, the Administrator may, in lieu of the authorities provided in paragraph (2) andsubsection (f) of this section, elect to promulgate standards or requirements applicable to sourcesin such categories or subcategories which provide for the use of generally available controltechnologies or management practices by such sources to reduce emissions of hazardous airpollutants.


Addendum-5

42 U.S.C. § 7412(h)

(h) Work practice standards and other requirements

(1) In general

For purposes of this section, if it is not feasible in the judgment of the Administrator to prescribeor enforce an emission standard for control of a hazardous air pollutant or pollutants, theAdministrator may, in lieu thereof, promulgate a design, equipment, work practice, oroperational standard, or combination thereof, which in the Administrator's judgment is consistentwith the provisions of subsection (d) or (f) of this section. In the event the Administratorpromulgates a design or equipment standard under this subsection, the Administrator shallinclude as part of such standard such requirements as will assure the proper operation andmaintenance of any such element of design or equipment.

(2) Definition

For the purpose of this subsection, the phrase “not feasible to prescribe or enforce an emissionstandard” means any situation in which the Administrator determines that—

(A) a hazardous air pollutant or pollutants cannot be emitted through a conveyancedesigned and constructed to emit or capture such pollutant, or that anyrequirement for, or use of, such a conveyance would be inconsistent with anyFederal, State or local law; or

(B) the application of measurement methodology to a particular class of sources is notpracticable due to technological and economic limitations.


Addendum-6

42 U.S.C. § 7412(q)(1)

(q) Savings Provision

(1) Standards previously promulgated

Any standard under this section in effect before the date of enactment of the Clean Air ActAmendments of 1990 [November 15, 1990] shall remain in force and effect after such dateunless modified as provided in this section before the date of enactment of such Amendments orunder such Amendments. Except as provided in paragraph (4), any standard under this sectionwhich has been promulgated, but has not taken effect, before such date shall not be affected bysuch Amendments unless modified as provided in this section before such date or under suchAmendments. Each such standard shall be reviewed and, if appropriate, revised, to comply withthe requirements of subsection (d) of this section within 10 years after the date of enactment ofthe Clean Air Act Amendments of 1990. If a timely petition for review of any such standardunder section 7607 of this title is pending on such date of enactment, the standard shall be upheldif it complies with this section as in effect before that date. If any such standard is remanded tothe Administrator, the Administrator may in the Administrator’s discretion apply either therequirements of this section, or those of this section as in effect before the date of enactment ofthe Clean Air Act Amendments of 1990.


Addendum-7

42 U.S.C. § 7414(a)(1)(C)

§ 7414 Recordkeeping, inspections, monitoring, and entry

(a) Authority of Administrator or authorized representative

* * *

(1) the Administrator may require any person who owns or operates any emission source,who manufactures emission control equipment or process equipment, who the Administratorbelieves may have information necessary for the purposes set forth in this subsection, or who issubject to any requirement of this chapter (other than a manufacturer subject to the provisions ofsection 7525(c) or 7542 of this title with respect to a provision of subchapter II of this chapter)on a one time, periodic or continuous basis to—

* * *(C) install, use, and maintain such monitoring equipment, and use such audit

procedures, or methods;


Addendum-8

42 U.S.C. § 7602(k)

§ 7602 Definitions

* * *

(k) The terms “emission limitation” and “emission standard” mean a requirement established bythe State or the Administrator which limits the quantity, rate, or concentration of emissions of airpollutants on a continuous basis, including any requirement relating to the operation ormaintenance of a source to assure continuous emission reduction, and any design, equipment,work practice or operational standard promulgated under this chapter.


Addendum-9

42 U.S.C. § 7607(b)

§ 7607 Administrative proceedings and judicial review

* * *

(b) Judicial review

(1) A petition for review of action of the Administrator in promulgating any nationalprimary or secondary ambient air quality standard, any emission standard or requirement undersection 7412 of this title, any standard of performance or requirement under section 7411 of thistitle, any standard under section 7521 of this title (other than a standard required to be prescribedunder section 7521(b)(1) of this title), any determination under section 7521(b)(5) of this title,any control or prohibition under section 7545 of this title, any standard under section 7571 of thistitle, any rule issued under section 7413, 7419, or under section 7420 of this title, or any othernationally applicable regulations promulgated, or final action taken, by the Administrator underthis chapter may be filed only in the United States Court of Appeals for the District of Columbia.A petition for review of the Administrator's action in approving or promulgating anyimplementation plan under section 7410 of this title or section 7411(d) of this title, any orderunder section 7411(j) of this title, under section 7412 of this title, under section 7419 of this title,or under section 7420 of this title, or his action under section 1857c–10(c)(2)(A), (B), or (C) ofthis title (as in effect before August 7, 1977) or under regulations thereunder, or revisingregulations for enhanced monitoring and compliance certification programs under section7414(a)(3) of this title, or any other final action of the Administrator under this chapter(including any denial or disapproval by the Administrator under subchapter I of this chapter)which is locally or regionally applicable may be filed only in the United States Court of Appealsfor the appropriate circuit. Notwithstanding the preceding sentence a petition for review of anyaction referred to in such sentence may be filed only in the United States Court of Appeals forthe District of Columbia if such action is based on a determination of nationwide scope or effectand if in taking such action the Administrator finds and publishes that such action is based onsuch a determination. Any petition for review under this subsection shall be filed within sixtydays from the date notice of such promulgation, approval, or action appears in the FederalRegister, except that if such petition is based solely on grounds arising after such sixtieth day,then any petition for review under this subsection shall be filed within sixty days after suchgrounds arise. The filing of a petition for reconsideration by the Administrator of any otherwisefinal rule or action shall not affect the finality of such rule or action for purposes of judicialreview nor extend the time within which a petition for judicial review of such rule or actionunder this section may be filed, and shall not postpone the effectiveness of such rule or action.

(2) Action of the Administrator with respect to which review could have been obtained underparagraph (1) shall not be subject to judicial review in civil or criminal proceedings forenforcement. Where a final decision by the Administrator defers performance of anynondiscretionary statutory action to a later time, any person may challenge the deferral pursuantto paragraph (1).


Addendum-10

42 U.S.C. § 7607(d)(1)(C)

(d) Rulemaking

(1) This subsection applies to—

* * *

(C) the promulgation or revision of any standard of performance under section 7411of this title, or emission standard or limitation under section 7412(d) of this title,any standard under section 7412(f) of this title, or any regulation under section7412(g)(1)(D) and (F) of this title, or any regulation under section 7412(m) or (n)of this title,


Addendum-11

42 U.S.C. §§ 7607(d)(3)-(9)

(d) Rulemaking

* * *

(3) In the case of any rule to which this subsection applies, notice of proposed rulemaking shallbe published in the Federal Register, as provided under section 553(b) of title 5, shall beaccompanied by a statement of its basis and purpose and shall specify the period available forpublic comment (hereinafter referred to as the “comment period”). The notice of proposedrulemaking shall also state the docket number, the location or locations of the docket, and thetimes it will be open to public inspection. The statement of basis and purpose shall include asummary of—

(A) the factual data on which the proposed rule is based;

(B) the methodology used in obtaining the data and in analyzing the data; and

(C) the major legal interpretations and policy considerations underlying the proposedrule.

The statement shall also set forth or summarize and provide a reference to any pertinent findings,recommendations, and comments by the Scientific Review Committee established under section7409(d) of this title and the National Academy of Sciences, and, if the proposal differs in anyimportant respect from any of these recommendations, an explanation of the reasons for suchdifferences. All data, information, and documents referred to in this paragraph on which theproposed rule relies shall be included in the docket on the date of publication of the proposedrule.

(4)(A) The rulemaking docket required under paragraph (2) shall be open for inspection by thepublic at reasonable times specified in the notice of proposed rulemaking. Any person may copydocuments contained in the docket. The Administrator shall provide copying facilities whichmay be used at the expense of the person seeking copies, but the Administrator may waive orreduce such expenses in such instances as the public interest requires. Any person may requestcopies by mail if the person pays the expenses, including personnel costs to do the copying.

(B)(i) Promptly upon receipt by the agency, all written comments and documentaryinformation on the proposed rule received from any person for inclusion in the docket during thecomment period shall be placed in the docket. The transcript of public hearings, if any, on theproposed rule shall also be included in the docket promptly upon receipt from the person whotranscribed such hearings. All documents which become available after the proposed rule hasbeen published and which the Administrator determines are of central relevance to therulemaking shall be placed in the docket as soon as possible after their availability.

(ii) The drafts of proposed rules submitted by the Administrator to the Office ofManagement and Budget for any interagency review process prior to proposal of any such rule,all documents accompanying such drafts, and all written comments thereon by other agenciesand all written responses to such written comments by the Administrator shall be placed in the


Addendum-12

docket no later than the date of proposal of the rule. The drafts of the final rule submitted forsuch review process prior to promulgation and all such written comments thereon, all documentsaccompanying such drafts, and written responses thereto shall be placed in the docket no laterthan the date of promulgation.

(5) In promulgating a rule to which this subsection applies (i) the Administrator shall allow anyperson to submit written comments, data, or documentary information; (ii) the Administratorshall give interested persons an opportunity for the oral presentation of data, views, orarguments, in addition to an opportunity to make written submissions; (iii) a transcript shall bekept of any oral presentation; and (iv) the Administrator shall keep the record of such proceedingopen for thirty days after completion of the proceeding to provide an opportunity for submissionof rebuttal and supplementary information.

(6)(A) The promulgated rule shall be accompanied by (i) a statement of basis and purpose likethat referred to in paragraph (3) with respect to a proposed rule and (ii) an explanation of thereasons for any major changes in the promulgated rule from the proposed rule.

(B) The promulgated rule shall also be accompanied by a response to each of thesignificant comments, criticisms, and new data submitted in written or oral presentations duringthe comment period.

(C) The promulgated rule may not be based (in part or whole) on any information or datawhich has not been placed in the docket as of the date of such promulgation.

(7)(A) The record for judicial review shall consist exclusively of the material referred to inparagraph (3), clause (i) of paragraph (4)(B), and subparagraphs (A) and (B) of paragraph (6).

(B) Only an objection to a rule or procedure which was raised with reasonable specificityduring the period for public comment (including any public hearing) may be raised duringjudicial review. If the person raising an objection can demonstrate to the Administrator that itwas impracticable to raise such objection within such time or if the grounds for such objectionarose after the period for public comment (but within the time specified for judicial review) andif such objection is of central relevance to the outcome of the rule, the Administrator shallconvene a proceeding for reconsideration of the rule and provide the same procedural rights aswould have been afforded had the information been available at the time the rule was proposed.If the Administrator refuses to convene such a proceeding, such person may seek review of suchrefusal in the United States court of appeals for the appropriate circuit (as provided in subsection(b) of this section). Such reconsideration shall not postpone the effectiveness of the rule. Theeffectiveness of the rule may be stayed during such reconsideration, however, by theAdministrator or the court for a period not to exceed three months.

(8) The sole forum for challenging procedural determinations made by the Administrator underthis subsection shall be in the United States court of appeals for the appropriate circuit (asprovided in subsection (b) of this section) at the time of the substantive review of the rule. Nointerlocutory appeals shall be permitted with respect to such procedural determinations. Inreviewing alleged procedural errors, the court may invalidate the rule only if the errors were so


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serious and related to matters of such central relevance to the rule that there is a substantiallikelihood that the rule would have been significantly changed if such errors had not been made.

(9) In the case of review of any action of the Administrator to which this subsection applies, thecourt may reverse any such action found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance withlaw;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutoryright; or

(D) without observance of procedure required by law, if (i) such failure to observesuch procedure is arbitrary or capricious, (ii) the requirement of paragraph (7)(B)has been met, and (iii) the condition of the last sentence of paragraph (8) is met.


Addendum-14

40 C.F.R. § 63.100(j)(4)

Applicability and designation of source

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(j) The provisions of subparts F, G, and H of this part do not apply to the processes specified inparagraphs (j)(1) through (j)(6) of this section. Subparts F, G, and H do not require processesspecified in paragraphs (j)(1) through (j)(6) to comply with the provisions of subpart A of thispart.

(1) Research and development facilities, regardless of whether the facilities arelocated at the same plant site as a chemical manufacturing process unit that issubject to the provisions of subparts F, G, or H of this part.

(2) Petroleum refining process units, regardless of whether the units supplyfeedstocks that include chemicals listed in table 1 of this subpart to chemicalmanufacturing process units that are subject to the provisions of subparts F, G, orH of this part.

(3) Ethylene process units, regardless of whether the units supply feedstocks thatinclude chemicals listed in table 1 of this subpart to chemical manufacturingprocess units that are subject to the provisions of subpart F, G, or H of this part.

(4) Batch process vents within a chemical manufacturing process unit.


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40 C.F.R. § 63.11865

Am I subject to the requirements in this subpart?

You are subject to the requirements in this subpart if you own or operate one or more polyvinylchloride and copolymers production process units (PVCPU) as defined in § 63.12005 that arelocated at, or are part of, a major source of hazardous air pollutants (HAP) emissions as definedin § 63.2. The requirements of this subpart do not apply to research and development facilities,as defined in section 112(c)(7) of the Clean Air Act, or to chemical manufacturing process units,as defined in § 63.101, that produce vinyl chloride monomer or other raw materials used in theproduction of polyvinyl chloride and copolymers.


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40 C.F.R. § 63.11875(a)

When must I comply with this subpart?

(a) If you own or operate an existing affected source, you must achieve compliance with theapplicable provisions in this subpart no later than April 17, 2015. On or after April 17, 2015, anysuch existing affected source is no longer subject to the provisions of 40 CFR part 61, subpart F.


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40 C.F.R. § 63.11915(c)

What are my compliance requirements for equipment leaks?

For equipment in HAP service (as defined in § 63.12005), you must comply with therequirements in paragraphs (a) through (c) of this section.

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(c) Requirements for pressure relief devices. For pressure relief devices in HAP service, asdefined in § 63.12005, you must meet the requirements of this paragraph (c) and paragraph (a) ofthis section, you must comply with the recordkeeping provisions in § 63.11990(c), and you mustcomply with the reporting provisions in §§ 63.11985(a)(2), (b)(2) and (c)(7).


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40 C.F.R. § 63.11925(a)

What are my initial and continuous compliance requirements for process vents?

Each process vent must meet the requirements of paragraphs (a) through (h) of this section.

(a) Emission limits. Each process vent must meet the emission limits in Table 1 or 2 to thissubpart prior to the vent stream being exposed to the atmosphere. The emission limits in Table 1or 2 to this subpart apply at all times. The emission limits in Table 1 or 2 to this subpart must notbe met through dilution.


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40 C.F.R. § 63.11930(c)

What requirements must I meet for closed vent systems?

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(c) Bypass. For each closed vent system that contains a bypass as defined in §63.12005 (e.g.,diverting a vent stream away from the control device), you must not discharge to the atmospherethrough the bypass. Any such release constitutes a violation of this rule. The use of any bypassdiverted to the atmosphere during a performance test invalidates the performance test. You mustcomply with the provisions of either paragraph (c)(1) or (2) of this section for each closed ventsystem that contains a bypass that could divert a vent stream to the atmosphere.


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40 C.F.R. § 63.11945(d)(1)

What performance testing requirements must I meet for process vents?

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(d) Concentration correction calculation. If a combustion device is the control device andsupplemental combustion air is used to combust the emissions, the concentration of totalhydrocarbons, total organic HAP, vinyl chloride, and hydrogen chloride must be corrected asspecified in paragraph (d)(1) or (2) of this section. If a control device other than a combustiondevice is used to comply with an outlet concentration emission limit for batch process vents, youmust correct the actual concentration for supplemental gases as specified in paragraph (d)(3) ofthis section.

(1) Determine the concentration of total hydrocarbons, total organic HAP, vinylchloride, or hydrogen chloride corrected to 3-percent oxygen (Cc) using Equation1 of this section.


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40 C.F.R. § 63.11955

What are my initial and continuous compliance requirements for other emission sources?

(a) Before opening any process component (including pre-polymerization reactors used in themanufacture of bulk resins) for any reason, the quantity of vinyl chloride must be reduced to anamount that occupies a volume of no more than 2.0 percent of the component's or equipment'scontainment volume, or 25 gallons, whichever is larger, at standard temperature and pressure.

(b) Before opening a polymerization reactor for any reason, the quantity of vinyl chloride is notto exceed 0.04 pounds per ton of PVC product, with the product determined on a dry solids basis.

(c) Any gas or vapor HAP removed from a process component in accordance with paragraphs (a)and (b) of this section must be vented to a closed vent system and control device meeting therequirements of §§63.11925 through 63.11950.

(d) Each gasholder in vinyl chloride service must meet the requirements of paragraphs (d)(1)through (3) of this section.

(1) Each gasholder must be vented to a closed vent system and control devicemeeting the requirements of §§63.11925 through 63.11950.

(2) Each gasholder must operate with one or more of the following installed on thewater seal to reduce emissions:

(i) Floating balls;

(ii) Hollow floating disks;

(iii) Oil layer; and/or

(iv) Floating mats.

(3) Each gasholder must have established operating procedures that includeprovisions for ensuring that the requirements of paragraph (d)(2) of this sectionare met at all times except during periods of maintenance or repair. The standardoperating procedures must be developed and implemented and made available tothe Administrator upon request.


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40 C.F.R. § 63.12005 (excerpts)

What definitions apply to this subpart?

Terms used in this subpart are defined in the Clean Air Act, in §63.2, and in this section, asfollows:

* * *

Pressure relief device means a safety device used to prevent operating pressures from exceedingthe maximum allowable working pressure of the process component. A common pressure reliefdevice is a spring-loaded pressure relief valve.

* * *

Process vent means a vent stream that is the result of the manifolding of each and all batchprocess vent, continuous process vent, or miscellaneous vent resulting from the affected facilityinto a closed vent system and into a common header that is routed to a control device. Theprocess vent standards apply at the outlet of the control device. A process vent is either a PVC-only process vent or a PVC-combined process vent.

Process wastewater means wastewater that comes into direct contact with HAP or results fromthe production or use of any raw material, intermediate product, finished product, by-product, orwaste product containing HAP, but that has not been discharged untreated as wastewater.Examples are product tank drawdown or feed tank drawdown; water formed during a chemicalreaction or used as a reactant; water used to wash impurities from organic products or reactants;water used to cool or quench organic vapor streams through direct contact; water discarded froma control device; and condensed steam from jet ejector systems pulling vacuum on vesselscontaining organics. Gasholder seal water is not process wastewater until it is removed from thegasholder.

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in the united states court of appeals for the ......mexichem resinas vinílicas s.a. de c.v., which...

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