U.S. EPA published an enforcement alert in February – “Violations at Petroleum Refineries and Ethylene Plants Cause Excess Benzene and Other VOC Emissions in Nearby Communities.” This alert summarizes what has been a renewed Benzene Waste Operations NESHAP (BWON) [40 CFR 61 Subpart FF] enforcement initiative which dates back more than two years. Refineries and Chemical plants are in the midst of a new enforcement wave, bringing with it new U.S. EPA interpretations and enhanced focus areas. The result of this enforcement effort looks to be a new round of “global” consent decrees that will set new standards for compliance across the industry.

History of BWON Enforcement

Generally, the BWON applies to all petroleum refineries and chemical plants (a source category which is broadly defined). All subject facilities are required to account, at least initially, for the Total Annual Benzene (TAB) mass contained in waste and wastewater streams generated by the facility. Depending on the magnitude of the TAB (greater than or less than 10 megagrams [Mg]), facilities are also subject to various control requirements and associated monitoring and inspection requirements.

The BWON regulation dates back to an initial promulgation in 1990 and has not been significantly revised since 1993; however, compliance expectations have been reshaped as a result of a concerted U.S. EPA enforcement effort in the early 2000s. The enforcement initiative resulted in companies representing greater than 95% of total U.S. petroleum refining capacity entering into largely identical “global” consent decrees. Among the requirements of these new consent decrees were a set of enhanced requirements specific to BWON compliance.

In this set of consent decrees, U.S. EPA focused largely on ensuring that applicable sites were properly identify and characterizing all waste streams. Facilities were required to engage third parties to verify their waste stream lists and quantification as well as the adequacy of outside laboratories used to provide waste stream characterization data. Facilities implemented enhanced management of change (MOC) processes focused on identifying any new or modified benzene-containing waste streams or equipment changes that could impact BWON controls compliance. Facilities also prepared end of line (EOL) programs that utilized downstream waste/wastewater sampling as a rough verification of the accuracy of upstream TAB quantifications. While this series of consent decrees included new requirements for operating and monitoring carbon canister control devices; the vast majority of new requirements were specific to proper identification and quantification of waste streams and were not focused on the control requirements of the rule.

Recently, several facilities have been successful in terminating their consent decrees. Once terminated, most of the enhanced BWON requirements no longer apply to the site. Although the BWON has not been significantly revised since 1993, U.S. EPA was offered the opportunity to formally incorporate any enhanced requirements via the risk and technology review cycle for the refinery Maximum Available Control Technology (MACT) regulations (40 CFR 63 Subparts CC and UUU). 40 CFR 63 Subpart CC includes wastewater requirements for refineries which cross reference the BWON. During this rulemaking, U.S. EPA decided to not adopt any additional requirements for refinery wastewater collection and treatment systems based partially on the concept that new benzene fenceline monitoring requirements would be sufficient to assure adequate control from wastewater sources.

Recent U.S. EPA Inspections

More than two years ago, U.S. EPA initiated a renewed compliance and enforcement program for the BWON. Led by U.S. EPA Region 5 and the National Enforcement Investigations Center (NEIC), BWON compliance inspections have been conducted at several facilities across the petroleum refining, ethylene production, and broader chemical sectors. Rather than focusing on waste stream identification and quantification, U.S. EPA is focusing more intensely on BWON control requirements for applicable waste management units (WMUs).

U.S. EPA has been leveraging new technologies as part of these recent inspections including the use of optical gas imaging technology to screen for potential leaks from controlled equipment as well as Geospatial Measurement of Air Pollution (GMAP) where ambient monitoring instrumentation installed in mobile vehicles can provide real-time monitoring data for pollutants (including benzene) along facility perimeters and within surrounding communities.

Based on screening with innovative technologies and follow-up Method 21 monitoring and visual inspections, U.S. EPA has identified common issues across sites that include:

• Junction boxes/lift stations
• Cracks
• Bad seals
• Leaks from hatches
• Wastewater Treatment Plant (WWTP)
• API roof seals/seams
• DAF/DGF roof leaks
• Pressure Relief Valves
• Visual identification of relief event (residual staining)
• Method 21 monitoring indicating hasn’t properly reseated

Enforcement Alert Published

In February 2024, U.S. EPA issued an enforcement alert, specific to BWON compliance concerns across the refining and ethylene industries. The enforcement alert lists areas of observed noncompliance and offers strategies that facilities can employ for enhanced compliance to mitigate enforcement risk (largely involving significant capital expenditures to install new control equipment).

U.S. EPA identified categories of noncompliance concerns including observed failures to properly conduct visual inspections and no detectable emissions (NDE) leak monitoring. U.S. EPA also claims that sites are failing to properly correct noncompliance, resulting in “chronic” issues where the same equipment is found to fail NDE monitoring or visual inspections across more than one set of monitoring events. Additionally, U.S. EPA highlighted the following areas of concern:

• Missing bolts.
• Unlatched hatches.
• Poorly gasketed hatches.
• Damaged or missing caulking.
• Obvious cracks in sealant.
• Holes in roofs.
• Gaps between cover and walls in separators.
• Oil on covers.
• Dry water seals.
• Detectable emissions from above-grade sewers
• Large gaps between process equipment drains and the water-sealed drain
• Venting from rain caps on floating roofs.
• Cracked concrete.

Some of these issues have historically not been considered noncompliance (including NDE observations form equipment for which the rule does not require NDE monitoring and “air gaps” between process equipment and the water-sealed drain cup). U.S. EPA further suggests that when these issues become “chronic” it is a sign of improper design or a failure in proper preventative maintenance and that the WMU, therefore, can no longer be considered controlled.

U.S. EPA also notes an observed failure to create and/or maintain engineering design documentation for control equipment, which includes the covers, all openings and closed vent systems subject to NDE, as well as control devices that are installed on the waste management unit or treatment processes managing benzene waste. Historical enforcement has focused on proper design documentation for add on pollution control devices (e.g. carbon canisters, thermal oxidizers); however current U.S. EPA expectation is that this should be maintained for all controlled equipment.

Future Consent Decrees

As the enforcement initiative progresses, U.S. EPA has issued a finding of violation (FOV) to a number of sites and has begun negotiations to establish new consent decrees. Expectations are that, similar to the process in the early 2000s, U.S. EPA will seek to enter into consent decrees encompassing the majority of the industry. Only one consent decree has been finalized to date (BP Products North America refinery in Whiting, IN – entered August 9, 2023). This consent decree includes a $40 million civil penalty (almost half of the total civil penalties for all refineries combined across the previous global consent decrees) and requirements to install nearly $200 million of new controls and equipment. Further, the refinery will have to implement an enhanced monitoring and inspection program including much more frequent monitoring, use of OGI monitoring in addition to visual inspections and NDE monitoring, and a program to address repeat leaks through a root case analysis.

Facilities can expect U.S. EPA to push for similar requirements in future consent decrease as part of this initiative. Based on the enforcement alert, consent decree negotiations can also be expected to include capital expenditures for enhanced controls as part of injunctive relief. These projects could include:

• Install or upgrades, or both, with benzene emission reduction technologies that treat high benzene process wastes where the waste stream exits the process unit, such as benzene stripper(s) or flash column(s);
• Upgrades to dissolved gas flotation and induced gas floatation systems;
• Upgrades to internal/external floating roof and fixed roof tanks and API separators, including modifying or replacing floating roof tanks and inground APIs separators, as needed;
• Install or upgrades to covers of aeration basins/enhanced biodegradation units (e.g., improved material selection, vapor tight sealing, and automated and remote monitoring);
• Upgrades to barscreen/grit chambers (e.g., capacity expansion, enhanced maintenance and cleaning protocols); and
• Upgrades to controls on equalization tanks and mixing bays.

How to Prepare Your Site

If your site has not already been inspected, Trinity recommends internally auditing your facility. Specifically, Trinity recommends conducting inspections through the lens of current U.S. EPA interpretations. This could include conducting OGI and NDE monitoring for all controlled WMUs. Sites may also benefit from a review of historical monitoring and inspection records to identify if there are issues that could be interpreted as repeat or “chronic” and consider if there are additional measures that could be taken to address those items. Based on U.S. EPA’s public remarks, this initiative is expected to press on at full speed until the majority of industry is covered.

Stay tuned for additional updates as the enforcement initiative progresses. Please reach out to David Wall – Director Refinery Sector Services – for more information on current the enforcement initiative and how Trinity can help.