Chemical manufacturers will face higher operating and capital costs if the U.S. Environmental Protection Agency’s proposed rule to cut toxic emissions by 6,000 tons per year takes effect.
The EPA estimated that chemical producers would incur about $501 million in total capital costs and approximately $190 million in total annualized costs to comply with updates to National Emissions Standards for Hazardous Air Pollutants, which the EPA proposed on April 6.
But the costs could be higher than the EPA’s estimates, says Lynn Bergeson, managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that specializes in chemical industry issues.
“Plainly, the most significant impact on chemical producers if the proposed rules are issued in final as proposed is increased operating cost and total capital costs,” says Bergeson. “EPA’s cost estimates are typically quite a bit lower that actual costs, and the Regulatory Impact Analysis for the proposed rules seems to be no exception.”
Bergeson adds that the industry will likely pass these costs on to customers.
New Technology Requirements
The proposed changes would require facility owners to strengthen their monitoring and repair policies and potentially new technology investments, says Christopher Clare, a senior attorney with Washington, D.C.-based Clark Hill PLC. For example, process plant operators may need to implement a closed-vent system for managing ethylene oxide emissions, Clare says.
"Covered facilities that do not already have such technology in place would need to invest in new technologies," he says.
When asked whether the proposal could prompt some chemical producers to replace certain materials, Clare says it’s possible if manufacturers struggle to meet the standard.
"If impacted facilities find that, despite their best efforts and repeated attempts at corrective action, they are unable to satisfy the applicable fenceline action level standards related to emissions of ethylene oxide, chloroprene, benzene, 1,3-butadiene, ethylene dichloride and vinyl chloride, facility owners may attempt to move away from the use of these chemicals altogether, though specific process analyses would be needed to determine how feasible such a change would be for a particular facility," he says.
Proposal Draws Criticism
The EPA says its proposal would dramatically reduce cancer risks related to air toxins for people who live near approximately 200 U.S. plants that make synthetic organic chemicals. The EPA’s proposal would update several regulations that apply to chemical plants, including plants that make synthetic organic chemicals, and regulations that apply to plants that make polymers such as neoprene.
But Bergeson echoed an American Chemistry Council (ACC) statement that the EPA’s risk valuations are inaccurate due to the agency’s overreliance on its Integrated Risk Information System (IRIS).
"We oppose any rulemaking that uses the EPA’s flawed IRIS value for ethylene oxide,” ACC said in a statement released on April 6. “ACC and others have detailed the severe science-based flaws with the IRIS value that resulted in an overly conservative value that is below background levels of ethylene oxide.”
ACC claims the IRIS program’s proposed toxicity value is 19,000 times lower than naturally occurring levels of ethylene oxide found in the human body.
“Overly conservative regulations on ethylene oxide could threaten access to products ranging from electric vehicle batteries to sterilized medical equipment,” ACC noted.
ACC indicated that any reliance on the IRIS value could lead to legal challenges.
In the meantime, chemical producers should carefully review the prosed standard given its precedent-setting implications, Bergeson says.
“The environment justice and potential tort implications of the proposal are worth considering,” she says.
The EPA’s proposal comes months after nonprofit environmental law group Earthjustice filed a lawsuit against the agency for failing to take legally required action to protect the public from “harmful carcinogenic air emissions from ethylene oxide sterilization facilities.” Earthjustice noted that children are particularly sensitive to ethylene oxide’s harmful effects and that plants ethylene oxide plants are often found in low-income neighborhoods and communities of color.
“Today’s proposals are an important first step in remedying an injustice that affects far too many communities,” said Earthjustice attorney Marvin Brown following the EPA’s announcement. “Too many workers and community members have gotten cancer from facilities that are supposed to make sure that our medical equipment is safe. We know, and EPA knows, that ethylene oxide poses a dire cancer risk to anyone who breathes it in. While EPA must move quickly to reduce ethylene oxide emissions, it must go further and ensure that frontline communities have the data to know when their air is safe through fenceline monitoring. And the agency must move quickly to reduce and phase out the use of ethylene oxide for sterilizing products that can be safely sterilized by other means.”