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. BP Products North America refinery in Whiting, IN entered into a consent decree on 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. The industry has anxiously been waiting to see the details of the next BWON CD to better understand if the BP CD was an anomaly or just the first of many similar CDs that would yet again bypass the regulatory process and set a new standard across the industry. This question was at least partially answered on September 27, 2024, when U.S. EPA announced a new CD with the Cenovus Energy refinery in Lima, OH. Given the relative size of the two refineries, and with
f Detectable emissions from above-grade sewers f Large gaps between process equipment drains and the water-sealed drain f Venting from rain caps on floating roofs f 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.
EHS Quarterly / Oct, 2024 20
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