Industrial Air Pollution Battle Set to Move Beyond Smokestacks

Advocates and communities pushing for increased air pollution monitoring at industrial facilities are stretching the limits of long-standing emission control requirements that have largely stopped at smokestacks.

Fenceline air monitoring tracks ambient air at the boundary lines of a facility’s operations, and the Environmental Protection Agency is moving forward with proposals that could start mandating the trending technology for coke ovens that heat coal and chemicals such as ethylene oxide.

But companies and industry argue such mandates go beyond the technology that is currently required under air statute.

“This is a battle over the role of fenceline monitoring under the Clean Air Act,” according to Doug Henderson, partner at King & Spalding LLP. “The Clean Air Act does have a lot of certain requirements for ambient air, but fenceline monitoring has not been part of how the Clean Air Act has been structured traditionally.”

Requiring this kind of pollution tracking is a trend long hailed by advocates and communities that are on the receiving end of operational emissions.

They argue that more monitoring beyond what happens at the top of smokestacks is needed to ascertain the full picture of pollution from certain facilities. The only fenceline monitoring that is currently required under air toxics rules governs benzene at petrochemical plants.

“You can look at it as a technical battle over benzene fenceline monitoring,” Henderson said. “But if you’re looking at it as a broader concept, it’s what is its role in regulating air quality in the United States?”

‘Unequivocal Yes’

Petitioners in a lawsuit over updates to lead acid battery standards, including Hoosier Environmental Council and other environmental groups, claim that fenceline monitoring can be considered required technology under the Clean Air Act.

Regulated companies that emit certain hazardous air pollutants must adhere to Maximum Achievable Control Technology standards, or MACTs. Under MACT rules, emitters have to install control devices that are proven to be effective based on what’s already in use by industry.

“If fenceline monitoring is such a development in pollution control, EPA was obligated to take it into account and decide whether to revise the 2007 standards to require fenceline monitoring,” according to a brief filed by petitioners on Aug. 31. “The answer should have been an unequivocal yes.”

States can set their own fenceline monitoring requirements, too. California requires fenceline monitoring for its refineries.

The Golden State’s rules are more aggressive than the federal rules, and they have inspired Colorado to set its own similar requirements, according to Troy Boley, vice president specialty environmental services at Spectrum Environmental Solutions, a company that provides environmental site assessments and monitoring technology.

California’s rules required continuous monitoring, with its results posted every five minutes to a public website, in what Boley called “a watershed moment for the country.”

“And those monitoring programs, no doubt are being looked at by other states,” Boley said.

Stalled Momentum

But plans to expand similar actions are being met by industry criticism. Similar legislative efforts by residents in the highly polluted southern corridor of Louisiana called Cancer Alley were turned down by state lawmakers in June.

Democrat and California state Sen. Lena Gonzalez authored a bill that would beef up requirements for California refineries, but it was tabled this month under oil company pressure. She said in an interview she plans to re-introduce the legislation next year.

Fenceline systems “validate the lived experiences of fence-line communities, whose health and wellbeing have been undermined by decades of toxic contamination,” Gonzalez said in a statement.

“Despite the critical need and potential for fence-line systems, my commonsense legislation, SB 674, was stalled and made into a two-year bill after a misinformation campaign led by the Western States Petroleum Association,” she continued.

The Western States Petroleum Association “is part of a coalition opposed to the bill as it was overly broad and ignores the extensive air quality monitoring already required,” according to spokesperson Kevin Slagle. “The coalition opposed to this bill will remain engaged heading into next year.”

The biggest concerns with fenceline monitoring center around the plethora of emissions data the technology can gather, how it is analyzed, and whether it completely represents what companies are responsible for.

Boley’s company, Spectrum, provides sophisticated technology using beams of lights to detect specific emissions. “We call it a search and destroy mission that goes inside the units and actually finds where these things are coming from and, eliminates them,” Boley said.

This type of technology eliminates the need to send data to an outside lab, and requires in-house technicians to hone in on pollution on the parts per billion level for highly specific results. But it’s also expensive, much more so than lower quality sensors that yield less specific results and require outsourcing for analysis.

Reliable Data

Monitoring at fencelines can provide crucial information in real time that better informs both companies and affected communities, but it’s essential that the data collection is done right and not just in excess, according to Barbara Morin, environmental analyst at Northeast States for Coordinated Air Use Management (NESCAUM).

“Not having the data be really reliable is in some ways worse than not collecting the data at all,” Morin said.

What limited federal monitoring that is required at fencelines also needs to be improved, EPA’s Office of Inspector General (OIG) said this month.

“Despite the existence of potential issues, the EPA and delegated authorities took limited formal enforcement-related actions at refineries under the benzene fenceline monitoring regulations,” the report said.

The watchdog found in the Sept. 6 report that agency oversight of high benzene levels at petrochemical facility boundaries is inadequate. Of the 18 regulated refineries, 13 of them had exceeded their benzene limits for up to 20 weeks past the initial spike.

Technical and legal uncertainty around expanded fenceline emissions tracking compounds the movement’s complexity, Henderson noted.

“It underscores that there’s a lot more technical challenge to these concepts than many might suspect in collecting fenceline data and making sure it’s accurate,” Henderson said. “It’s actually pretty challenging.”