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October 26, 2015
Fence Line Monitoring: Will we see more?
By Timothy P Fagan, Senior Legal Editor - EHS

On September 29, 2015, the U.S. Environmental Protection Agency (EPA) finalized revisions to regulations governing the petroleum refinery sector, including applicable New Source Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants (NESHAP). This is significant because, in addition to other changes, these regulations require refineries to continuously monitor emissions at the fence lines of their facilities, which is the first time a national regulation requires such actions. This begs the question, can we expect similar requirements for other sources?

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Why fence line monitoring requirements?

Under the revised regulations, refineries must continuously monitor benzene concentrations at the fence line in order to appropriately manage toxic emissions from fugitive sources such as leaking equipment and wastewater treatment. The monitors must surround the facility to account for variable wind direction, and any exceedance measured at the fence line will trigger corrective actions, resulting in significantly improved air quality in neighborhoods near petroleum refineries.

The communities located near the fence lines of refineries have low income and minority populations at nearly twice the rate as the general population. During the revisions process, the EPA engaged these communities, and this engagement brought about the possibility of fence line monitoring. Therefore, these regulations became some of the first to actively incorporate environmental justice concerns. Environmental justice (sometimes abbreviated “EJ”) is “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

Will this be a trend?

In July 2010, the EPA introduced Plan EJ 2014 as its strategy for integrating environmental justice into its programs, policies, and activities. The document includes the following among its priorities for 2015:

  • Continuing to implement environmental justice in rulemaking, which includes finalizing a guidance document titled “Technical Guidance for Assessing Environmental Justice in Regulatory Actions” to guide agency personnel through EJ evaluations during the rule development process;
  • Continuing to advance environmental justice in permitting; and
  • Continuing to implement environmental justice in enforcement.

The EPA is currently seeking input on its draft EJ 2020 Action Agenda to continue the advancement of environmental justice issues. A point of emphasis in this document is to “deepen environmental justice practice within EPA programs to improve the health and environment of overburdened communities.” This means an even greater emphasis on EJ evaluations in rulemaking, permitting, and enforcement, and a greater likelihood that fence line monitoring and other requirements expand to other regulations and industry sectors, as these actions will help the environmentally overburdened and economically distressed communities that surround these facilities.

Who is next?

Emissions of toxic air pollutants at facilities that have significant impact on air quality and health in communities have been an EPA national enforcement initiative (NEI) for many years. Petroleum refineries are among the facilities targeted by this initiative.

If the EPA is addressing environmental justice through enforcement, rulemaking, and permitting, it may stand to reason that other facilities or sectors targeted by this enforcement initiative may also be targeted for regulatory or permitting actions. In addition to refineries, chemical manufacturing facilities are targeted by the current NEI, and the EPA is also considering expanding this initiative for 2017–2019 to include organic liquid storage tanks, which would incorporate terminals, and hazardous waste air emissions at sources such as treatment, storage, and disposal facilities (TSDFs) and large quantity generators (LQGs) of hazardous waste. It’s possible that these facilities could become the subject of requirements similar to those imposed on petroleum refineries.

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