Is LDAR Enforcement Still a Thing?

Leak Detection and Repair (LDAR) enforcement may seem to have trailed off in recent years, as US EPA/DOJ settlements have dwindled, but if you’re asking “Is LDAR compliance still an EPA Region and/or Air Toxics Initiative?”the answer is a resounding YES. EPA has changed the method through which it enters into LDAR consent decrees, but that doesn’t mean LDAR enforcement has gone away. In fact, it’s more important than ever to stay on top of the latest LDAR regulatory actions to mitigate compliance risk.

This blog post discusses a new generation of Consent Decrees with Enhanced LDAR Programs (ELPs), how they differ from previous LDAR CDs, and what you can expect from the new enforcement initiative. For more about how CD ELPs may affect you specifically, join our “Ask a Regulator” webinar with EPA expert Kosta Loukeris at 1pm central on September 6th (50-person limit, so register today). 

Meet the New Generation of CDs: Enhanced LDAR Programs

Under leadership at EPA Region V, Consent Decree with Enhanced LDAR Programs undertook a heavy makeover in 2009 and 2010 with settlements between EPA/DOJ and INEOS Lanxess and Vertellus Agrosciences. In particular the settlements detail,

New-generation CDs differ from preceding LDAR CDs in that EPA amplified forward-looking expectations to re-prioritize “preventative maintenance” measures (i.e., Low-Emissions / Low-Leaking Equipment) in lieu of “find and fix it” standards, along with other LDAR program enhancements (increased audits, 3rd party QA/QC, and increased monitoring frequencies). 

The 2009 and 2010 agreements with INEOS Lanxess and Vertellus Agrosciences pre-empted a Chemical Plant CD ELP Initiative that later resulted in the following companies also agreeing to ELP settlements: Dow Chemical Company (Midland, MI); Solutia, Inc. (St. Louis, MO); SABIC Innovative Plastics (Mt. Vernon, IN and Birkville, AL); as well as BASF (Wyandotte, MI).

What did all of these companies have in common?

Most Consenters of new-gen ELPs were major sources for hazardous air pollutants (HAP) and subject to LDAR regulations covered under a Maximum Achievable Control Technology (MACT) regulation. 

CDs with Enhanced LDAR Programs and Refineries

It seemed that EPA was satisfied with its enforcement of US petroleum refiners, having negotiated CDs with >90% of US petroleum refining capacity by 2012, then came the daunting BP Whiting Consent Decree that lodged in November 2013. The BP Whiting CD ELP represented the most stringent CD ELP of its kind, irrespective of industry at the time:

Low-E requirements were mandated at 5 years at <100 ppm, quarterly QA/QC of all Management of Change (MOCs) to verify LDAR compliance, as well as NSPS VVa applicability and initial monitoring for all refinery process units. 

EPA’s “New” LDAR Enforcement Focus: Oil & Gas?

It was rumored that several other refineries were in negotiations for “2nd round” CDs that would include “BP Whiting ELP language” as a starting point. However, 2014 and 2015 passed without another major refining group entering into an ELP. With increased enforcement and notice of violations (NOVs) targeted at oil and gas (O&G) operators, along with the lodging of the Merit Energy ELP on 5/1/15 it appeared that EPA was focusing its resources on O&G, not US refining and chemical plant operators. 

Then, in July, Tesoro Corporation lodged a CD with ELP requirements that apply to its 5 refineries in Mandan, North Dakota; Salt Lake City, UT; Anacortes, WA; Martinez, CA; as well as Kenai, AK (note: its two California refineries in Carson and Wilmington are not applicable to the ELP). An early read of Tesoro’s ELP indicates that much of the language from the BP Whiting CD was indeed “boiler-plate” language that likely served as the “starting point” for negotiations between Tesoro and EPA/DOJ. Among other requirements,

Tesoro has mandates to implement Low-E, increased auditing and QA/QC, as well as to engage in a certification of compliance to “certify that all LDAR equipment subject to a Federal and/or State regulation is included within the affected facility’s LDAR program.” 

So, Yes. LDAR is (Still) an EPA Enforcement Priority (for Petroleum, Chemicals, and O&G)

The Tesoro CD signifies that EPA is continuing to allocate resources to ensure compliance with Federal, State and/or CD LDAR requirements, albeit with numerous other EPA compliance initiatives (e.g., Refinery Residual Risk and fenceline monitoring).

Stay tuned for a follow-up blog post next week with knowledge, lessons learned, and best practices on how to manage and mitigate LDAR compliance risk at your facility.  Feel free to post questions/comments below for Environmental intellect’s (Ei’s) team of LDAR experts, who have collectively negotiated over a dozen new-gen ELPs. And remember to join our “Ask a Regulator” webinar with EPA expert Kosta Loukeris for more about CD ELPs.