On May 24, 2023, the Pennsylvania Department of Environmental Protection (DEP) entered into a Consent Order and Agreement (COA) with Shell. This COA orders Shell to pay $5 million into a fund that benefits the community in Beaver County plus an additional $4.9 million in civil penalties to the state’s Clean Air Fund.
Background: Why Was the COA Necessary?
The facility, the Shell Polymers Monaca Site, is an ethylene cracker plant located in Potter and Center Townships in Beaver County, Pennsylvania. Shell’s plan to open and operate the facility was first approved by the Pennsylvania Department of Environmental Protection in 2015, with amendments in March 2021 and September 2022. The Plan Approval allowed Shell to begin operations at the facility, but it set limits on the amount of air pollutants that could be released from the facility over a 12-month period.
Shell is currently operating within the commissioning phase, meaning they are starting up operations and getting the equipment running. However, beginning in September 2022, they began to approach their 12-month limits on several types of air contaminants. Over the next six months, the facility went past their limits, including:
The facility exceeded its rolling 12-month limit on Volatile Organic Compounds (VOCs) in each month between October 2022 to April 2023;
Carbon Monoxide (CO) emissions exceeded the 12-month limitations between February and April of 2023, and;
Nitrogen Oxides (NOx) and Hazardous Air Pollutant (HAP) emissions exceeded their limits in every month between December 2022 and April 2023.
Each air contaminant and each month in which it was exceeded counts as one violation of the approved plan.
Additionally, Shell’s facility had multiple flaring violations, wastewater treatment violations, and violations of good operating practices of an air contamination source. This activity is unlawful under the Air Pollution Control Act, Pennsylvania’s law that governs air quality and emissions. Shell attributes some of the violations to malfunctions in its equipment. As a result, the facility temporarily shut down on March 25, 2023 to make repairs.
The Present: What does the COA Do?
A consent order is an agreement between an administrative agency like the Department of Environmental Protection and a private party such as Shell that can be used to enforce the agency’s rules. In this case, the Department of Environmental Protection has ordered Shell to lower their emissions and comply with their original Plan Approval, and Shell has agreed to the Department’s terms by signing it as well. The consent order adds several new mandatory monitoring and reporting requirements for Shell as the facility resumes operations. Shell will be required to do additional modeling of the malfunctioning flares, monthly reporting of the facility’s emissions, and details of their plans for making repairs.
Further, Shell is required to set aside $5 million in a community fund “to benefit the environment, health and quality of life of the community near the Facility.” DEP required their Office of Environmental Justice to create the rules for this $5 million community fund. To help create these rules, the Office of Environmental Justice created a steering comprised of DEP members and local community organization representatives to determine where these funds are invested. The Steering Committee created and approved a Environmental Mitigation Community Fund Protocol which details the process by which the $5 million can to be spent. The Protocol includes some of these requirements:
All eligible projects will be based in Beaver County.
One project must provide independent and regular air monitoring.
One project must educate and engage the community on how it can create ongoing solutions to improve to health and qualify of life in communities close to the Shell plant.
Only Beaver County nonprofits or entities that partner with them can apply.
A disclaimer must be attached to all publicity, press release, and/or advertisement of approved Community Projects, which reads: “This Community Project was funded, in whole or part, by the Environmental Mitigation Community Fund created pursuant to a Consent Order and Agreement that was executed between Shell Chemical Appalachia, LLC and the Pennsylvania Department of Environmental Protection, regarding violations of the Air Pollution Control Act and regulations.”
The fund will be overseen and administered by an independent trustee.
The COA also describes the civil penalties that Shell will need to pay because of its air pollution violations between September 2022 and April 2023. DEP is requiring Shell to pay a penalty of $4,935,023 to the state’s Clean Air Fund.
Moving Forward: What Comes Next?
It is important to understand that this consent order does not shut down the Shell Polymers Monaca facility. Shell resumed operations at the facility in early June. However, they are now legally bound to the terms of the consent order and agreement and have admitted to the violations that DEP stated. If they do not comply with the additional reporting, modeling, and monitoring requirements, Shell will be required to pay an additional $1,000 for each day that they are not in compliance with the new plan approval.
Within 60 days of the COA, Shell will meet with DEP to come up with the protocol on how projects will be selected and supported to benefit the community. This will determine how the $5 million community fund will be spent and who will determine what gets funding.
Regarding the $4.9 million in civil penalties, those fees only cover Shell’s past violations. If the facility exceeds its 12-month limitations in any month going forward, they will be required to pay additional fines for each contaminant that is over the limit for each month in which the limit was exceeded. Shell estimated that they should achieve compliance with all of their 12-month limitations by November of 2023. This may result in DEP imposing additional fines for exceedances in the coming months as they continue operations.
By Lillian Ostrander, Fair Shake Legal Intern
