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Recent Air Project Work

Note: Most of the air work is done with the help and expert guidance of the Tulane Environmental Law Clinic.

Contents:

Petion to EPA to audit the DEQ emissions bank.
Bump-Up suit.
Public Comments.
Public petitions.
The SIP suit.
Letters to the editor.
HON Information

Petition to Audit DEQ's Emissions Bank.
On Wednesday, April 10, citizens presented a petition requesting that the EPA audit DEQ's emissions bank, which holds the "emissions reduction credits" commonly called ERC's.
Fact Sheet.
Press Release.
Read petition.

The Bump-Up Suit.
LEAN has sued the EPA for not following the Clean Air Act (CAA) regarding ozone attainment compliance. The EPA was required to make a determination on whether or not the Baton Rouge ozone nonattainment area came into compliance for the national one hour standard. We didn't come into attainment and the EPA didn't make that determination in the timeline required by the CAA. So we sued.

We went to court on August 1, 2001, and the Judge Magistrate issued her report on August 29, 2001.

The Judge Magistrate's decision was very clear. It states that the EPA and DEQ must follow the Clean Air Act. It further gives the EPA 45 days in which to act, once the Judge makes a final ruling. At issue is whether or not the Baton Rouge ozone nonattainment area was in compliance with the national ozone standard on Nov. 15, 1999.

The Magistrate also made it clear that the EPA, and not the court, must make the determination. Since the EPA has already determined that we did NOT make the attainment date the outcome seems certain. The EPA's determination was published in a recent federal register notice which said, "Therefore, pursuant to section 181(b)(2)(B) of the CAA, we propose to find that the Baton Rouge area did not attain the one-hour standard by the November 15, 1999, deadline."
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PUBLIC COMMENTS

DEQ's New Contingency Measures
Another in DEQ's sad line of joke regulations. This one takes reductions that are already made and that are outside the Baton Rouge ozone nonattainment area and proposes to use them to meet the contingency requirements of the Clean Air Act.
Public Comments

ExxonMobil Tier 2 Project
Public Comments
Fact Sheet

Comments on the Georgia-Pacific Permit.
Georgia-Pacific did the right thing and reduced their VOC emissions by over 4 million pounds per year. However, DEQ is stomping all over the Clean Air Act with this permit. DEQ wants to turn permit violations into emission offsets, and are even rewriting the already rewritten emissions baniking regulations in their attempt. We are also fighting this issue in the Borden case and the Dow case.
1. Tulane Comments.
2. LEAN Comments.
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Comments on the SIP Revision.
The Department of Environmental Quality has a new plan for reducing ozone in the five parish Baton Rouge ozone nonattainment area. DEQ based the new plan on a study that found:
1. Trees are the primary source of the Baton Rouge ozone problem with over 80% of the ozone causing chemicals coming from trees.
2. Chemical pollution from local industries is NOT a significant part of the ozone problem, but
3. Chemical pollution from Houston IS a significant part of the Baton Rouge ozone problem.
1. Tulane comments.
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DuPont Dow Elastomers Air Permit
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Public comments for first and second set of proposed banking regulations.
What a mess! Our SIP suit showed that Louisiana was running an illegal emissions banking system. The bank is used for the emissions offset program, which is required because Baton Rouge is an ozone nonattainment area. So, DEQ proposed new regulations that are supposed to meet the requirements of the CAA and EPA. The new regulations say that starting in the future Louisiana will only accept legal offsets in the bank. What the new regulations don't do is fix the illegal offsets already in the bank or those already used to obtain permits.
DEQ wasn't satisfied with this situation and proposed a second set of banking regulations that are worse than the first ones. They have now changed the regulations to allow companies that are violating their permit to bank the permit violations as offsets provided they promise to quite violating the permit.
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Public comments for the Dow Engage Project.
1. Comments on permit modification. Dow and DEQ have been having trouble producing an acceptable permit. The struggle continues with a public hearing and Dow/DEQ's third attempt at an acceptable permit.
2. Comments on the permit.
3. Comments on ERC banking credits.
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Public Comments for Attainment Date Extension.
These are public comments on an EPA Federal Register notice that will let Louisiana attempt to get an extension of the attainment date for complying with the national one hour ozone standard in the Baton Rouge ozone nonattainment area.

The attainment date required in the Clean Air Act was May 15, 1999. The EPA agrees that Baton Rouge did not make the attainment deadline. But now, two years later, the EPA is helping DEQ apply for an extension to the attainment deadline due to "transport" from the Houston area. This promises to be a big fight. These issues will probably be settled in our "bump-up" lawsuit. The EPA had until Nov. 15, 1999 to decide the attainment status for Baton Rouge and didn't do it. So, we're suing in federal appeals court.
Public Comments and Federal Register Notice.
Public Comments From Tulane Env. Law Clinic. (Contains an excellent legal critique on the EPA's lack of authority to create a transport extension as proposed for Louisiana.)
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New Source Review
One of the first things the new Bush administration did was to let Vice President Cheney develop a new energy policy. A major position of the new energy policy seems to be an attempt to change the New Source Review (NSR) provisions of the Clean Air Act and to change the way the EPA currently enforces the NSR provisions.
Read LEAN Facts and Public Comments.
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Recent Public Petitions.
Dow Engage Project
Read More.

DuPont Dow Elastomers.
Read More.

Second Shell public petition. Three Shell permits were also withdrawn as a result of the settlement. Shell is now consolidating these three permits into a much better permit which includes a 280 tons per year reduction in emissions from their ethylene oxide unit. Ethylene oxide is a class 1 toxic air pollutant and a truly nasty chemical. This is an excellent outcome for the citizens and for Shell. LEAN is in favor of this development, but has submitted a public petition to force the EPA to address the Reasonable Further Progress provisions of the CAA. These state that you can't keep issuing new permits unless the air quality is improving. The EPA has been dodging this issue even as our air quality continues to degrade. LEAN is attempting to force a resolution of this issue.
Stay request for first Shell petition.

Third Shintech Petition. After being stopped in St. James Parish, Shintech has built a smaller facility in Ascension Parish. This permit has several interesting problems associated with it that the EPA has yet to address.

First Borden Petition.
EPA Response to the Petition. (85K pdf file)
In this hard to believe story, Borden buys emissions offsets from Georgia Gulf. The EPA says that these emmissions offsets were never banked by Georgia Gulf, that the emissions in question were not offsets to begin with, and that instead these emissions were in excess of Georgia Gulfs permit. To sum this up; Borden bought bogus offsets from Georgia Gulf, and these emissions weren't offsets at all but were actually permit violations. Makes you wonder how much Borden paid for the offsets?
After that you'd think DEQ would be repentant, but no... DEQ next issued Borden a new permit with new offsets. These offsets came from a DEQ-Borden settlement of prolonged Borden permit violations. As part of the settlement Borden agreed to put in control technology to reduce their emissions to the permitted level. It's these emissions reductions that Borden is now using as offsets. These emission reductions were part of a settlement to meet the permit requirements and are NOT valid offsets. That's why we're fighting the second Borden permit too.
The second Borden public petition. A second Borden permit was required when a comprehensive settlement of a lawsuit against the current State Implementation Plan (SIP) and two public petitions caused the EPA and our state's DEQ to revoke the first Borden permit. This settlement also concluded in the recognition by all parties that the Louisiana emissions banking system was irrevocably broken. The second Borden permit also has serious flaws, and we are petitioning against this permit too. Our prospects look good, Bordens dim.

Exxon Plastics Plant Petition. The EPA denied this petition while stating that the Reasonable Further Progress issue would be resolved in the first Borden permit. The issue was also avoided at that time. This Exxon permit was the focus of a state suit that is currently being appealed by LEAN. The permit, which had already been issued, ran into trouble when the emissions bank was declared a disaster. This left Exxon holding bogus emission credits for a valid permit. Subsequently, ExxonMobil did the right thing and announced an up coming reduction of 200 tons per year of hazardous air emissions. Another victory for citizens in an overburdened neighborhood.
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Work on the SIP Suit.
LEAN and the Tulane Environmental Law Clinic have recently reached a successful settlement in our suit over the current State Implementations Plan. (DEQ public notice and settlement agreement) We call this the SIP suit and had three good issues we were contending. These were the contingency plans, the rate of progress plan and the attainment demonstration modeling.

The suit was settled on the first issue which revolved around the states bogus emissions banking plan. The state was allowing banked emissions to be used twice, once for a netting analysis and again as emissions credits. This procedure came to be know as "surplus when issued", meaning that the banked emissions could be used for netting and still be available as banked credits. The EPA correctly said this practice did not conform to the CAA or to EPA guidelines which require "surplus when used".

Surplus when used means that any banked emission must be surplus at the time its used, and that banked emissions used for netting are no longer surplus nor available for use as banked emissions. The SIP suit was a long struggle and we feel it could have been won on each of our three issues. LEAN's contributions included, among other things, the following technical reports:
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Recent Letters to the Editor.
An effective way to reach the public is the use of letters to the editor. This allows a forum to educate the public on technical issues and to point out errors by our state agencies, which in Louisiana can be quite comical.
Letter rebutting the States tree pollution theory. Our state is currently claiming that 80% of the pollution in our industrial corridor comes from trees. Second killer tree letter.
Letter about "broken monitors" and the swamp gas problem. The state was claiming that recent ozone problems were due to either swamp gas or a broken monitor. They eventually settled on the broken monitor theory. The EPA signed off on this even though the monitor passed three quality assurance tests, one by the state, one by the EPA and one by the manufacturer. The ozone exceedences occurred just before our attainment demonstration date and the state was desperate.
Letter about the SIP suit.