[Federal Register: June 27, 2005 (Volume 70, Number 122)]
[Proposed Rules]
[Page 36907-36915]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn05-28]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[OAR-2002-0058; FRL-7928-7]
RIN 2060-AM97
National Emission Standards for Hazardous Air Pollutants for
Industrial, Commercial, and Institutional Boilers and Process Heaters:
Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of reconsideration of final rule; request
for public comment.
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SUMMARY: The EPA is requesting comment on certain aspects of our
national emission standards for hazardous air pollutants (NESHAP) for
industrial, commercial, and institutional boilers and process heaters,
which EPA promulgated on September 13, 2004.
After promulgation of the final regulations for boilers and process
heaters, the Administrator received petitions for reconsideration of
certain provisions in the final rule. In this document, the EPA is
initiating the reconsideration of some of those provisions. We are
requesting comment on certain provisions of the approach used to
demonstrate eligibility for the health-based compliance alternatives,
as outlined in appendix A of the final rule, and on the provisions
establishing a health-based compliance alternative for total selected
metals. We are not requesting comment on any other provisions of the
final rule. We are not granting petitioners' request that we stay the
effectiveness of the health-based compliance provisions of the final
rule, pending this reconsideration action.
DATES: Comments. Comments must be received on or before August 11,
2005.
Public Hearing. If anyone contacts EPA requesting to speak at a
public hearing by July 7, 2005, a public hearing will be held on July
12, 2005. For further information on the public hearing and requests to
speak, see the ADDRESSES section of this preamble.
ADDRESSES: Comments. Submit your comments, identified by Docket ID No.
OAR-2002-0058 (Legacy Docket ID No. A-96-47) by one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://www.epa.gov/edocket. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
E-mail: a-and-r-docket@epa.gov.
Fax: (202) 566-1741.
Mail: Air and Radiation Docket and Information Center,
U.S. EPA, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington,
DC 20460.
Hand Delivery: Air and Radiation Docket and Information
Center, U.S. EPA, Room B102, 1301 Constitution Avenue, NW., Washington,
DC. Such deliveries are only accepted during the Docket's normal hours
of operation, and special arrangements should be made for deliveries of
boxed information.
Instructions. Direct your comments to Docket ID No. OAR-2002-0058
(Legacy Docket ID No. A-96-47). The EPA's policy is that all comments
received will be included in the public docket without change and may
be made available online at http://www.epa.gov/edocket, including any
personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the Federal
regulations.gov Web sites are ``anonymous access'' systems, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through EDOCKET or regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Public Hearing. If a public hearing is held, it will be held on
July 12, 2005 at the EPA facility, Research Triangle Park, N.C. or an
alternative site nearby. Persons interested in attending the hearing or
wishing to present oral testimony should notify Ms. Pamela Garrett at
least 2 days in advance of the public hearing (see FOR FURTHER
INFORMATION CONTACT section of this preamble). The public hearing will
provide interested parties the opportunity to present data, views, or
arguments concerning this document.
Docket. The EPA has established an official public docket for
today's document, including both Docket ID No. OAR-2002-0058 and Legacy
Docket ID No. A-96-47. The official public docket consists of the
documents specifically referenced in today's document, any public
comments received, and other information related to the document. All
items may not be listed under both
[[Page 36908]]
docket numbers, so interested parties should inspect both docket
numbers to ensure that they have received all materials relevant to
today's document. Although listed in the index, some information is not
publicly available, i.e., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in EDOCKET or in hard copy at the Air
and Radiation Docket and Information Center, U.S. EPA, Room B102, 1301
Constitution Avenue, NW., Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Air and Radiation
Docket and Information Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For general and technical information,
contact Mr. James Eddinger, Combustion Group, Emission Standards
Division, Mailcode: C439-01, U.S. EPA, Research Triangle Park, NC
27711; telephone number: (919) 541-5426; fax number: (919) 541-5450; e-
mail address: eddinger.jim@epa.gov. For questions about the public
hearing, contact Ms. Pamela Garrett, Combustion Group, Emission
Standards Division, Mailcode: C439-01, Environmental Protection Agency,
Research Triangle Park, NC 27711; telephone number: (919) 541-7966; fax
number: (919) 541-5450; e-mail address: garrett.pamela@epa.gov.
SUPPLEMENTARY INFORMATION:
Outline. The information presented in this preamble is organized as
follows:
I. General Information
A. Does This Reconsideration Notice Apply to Me?
B. How Do I Submit CBI?
C. How Do I Obtain a Copy of This Document and Other Related
Information?
II. Background
III. Today's Action
A. Grant of Reconsideration
B. Request for Stay of Health-Based Alternatives
IV. Discussion of Issues Subject to Reconsideration
A. Methodology and Criteria for Demonstrating Eligibility for
the Health-based Compliance Alternatives
B. Tiered Risk Assessment Methodology
C. Look-Up Tables
D. Site-Specific Risk Assessment
E. Background Concentrations and Emissions From Other Sources
F. Health-Based Compliance Alternative for Metals
G. Deadline for Submission of Health-Based Applicability
Determinations
H. What Are the Proposed Corrections to the Health-Based
Compliance Alternatives?
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Does This Reconsideration Notice Apply to Me?
Categories and entities potentially affected by today's document
include:
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Examples of potentially regulated
Category SIC code a NAICS code b entities
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Any industry using a boiler or process 24 321 Manufacturers of lumber and wood
heater as defined in the final rule 26 322 products.
28 325 Pulp and paper mills.
Chemical manufacturers.
29 324 Petroleum refineries, and
manufacturers of coal products.
30 316, 326, 339 Manufacturers of rubber and
miscellaneous plastic products.
33 331 Steel works.
34 332 Electroplating, plating,
polishing, anodizing, and
coloring.
37 336 Manufacturers of motor vehicle
parts and accessories.
49 221 Electric, gas, and sanitary
services.
80 622 Health services.
82 611 Educational services.
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a Standard Industrial Classification.
b North American Industrial Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by today's
document. To determine whether your facility is affected by today's
document, you should examine the applicability criteria in Sec.
63.7485 of the final rule. If you have questions regarding the
applicability of today's document to a particular entity, consult Mr.
Jim Eddinger listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. How Do I Submit CBI?
Do not submit this information to EPA through EDOCKET,
regulations.gov, or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI in a disk or CD ROM that
you mail to EPA, mark the outside of the disk or CD ROM as CBI and then
identify electronically within the disk or CD ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
C. How Do I Obtain a Copy of This Document and Other Related
Information?
In addition to being available in the docket, an electronic copy of
today's document also will be available on the World Wide Web (WWW)
through EPA's Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of this document will be posted on
the TTN's policy and guidance page for newly proposed rules at http://www.epa.gov/ttn/oarpg.
The TTN provides information and technology
exchange in various areas of air pollution control.
II. Background
On September 13, 2004 (69 FR 55218), we promulgated NESHAP for
sources in the industrial, commercial, and institutional boilers and
process heaters category pursuant to section 112 of the Clean Air Act
(CAA). Under section 112(d) of the CAA, the NESHAP must
[[Page 36909]]
reflect the maximum degree of reduction in emissions of HAP that is
achievable, taking into consideration the cost of achieving the
emissions reductions, any non-air quality health and environmental
impacts, and energy requirements. This level of control is commonly
referred to as maximum achievable control technology (MACT). However,
section 112(d)(4) of the CAA also states that ``[w]ith respect to
pollutants for which a health threshold has been established, the
Administrator may consider such threshold level, with an ample margin
of safety, when establishing emissions standards under this
subjection.''
We proposed standards for industrial, commercial, and institutional
boilers and process heaters on January 13, 2003 (68 FR 16660). The
preamble for the proposed rule described the rationale for the proposed
rule and solicited public comments. We requested comment on
incorporating various risk-based approaches (based on section 112(d)(4)
and other provisions of the CAA) into the final rule to reduce the cost
of regulatory controls on those facilities that pose little risk to
public health and the environment. (See 68 FR 1688-1693.) Industry
trade associations, owners/operators of boilers and process heaters,
State regulatory agencies, local government agencies, and environmental
groups submitted comments on the proposed risk-based approaches. We
received a total of 218 public comment letters on the proposed rule
during the comment period. We summarized major public comments on the
proposed risk-based approaches, along with our responses to those
comments, in the preamble to the final rule (see 69 FR 55239-55244) and
in the comment response memorandum, ``Response to Public Comments on
Proposed Industrial, Commercial, and Institutional Boilers and Process
Heaters NESHAP (Revised) (RTC Memorandum) that was placed in the docket
for the final rule.
In the final rule, we adopted health-based compliance alternatives
for hydrogen chloride (HCl) and manganese based on our authority under
sections 112(d)(4) of the CAA. Affected sources demonstrating that they
are eligible for one or both of the health-based compliance
alternatives are not required to demonstrate compliance with specific
emissions limits in table 1 to the final rule. Affected sources that
successfully demonstrate that they are eligible for the HCl health-
based compliance alternatives are not subject to the MACT HCl emission
limit but are still subject to operating and monitoring requirements in
the final rule (subpart DDDDD of 40 CFR part 63). With respect to
manganese, affected sources that demonstrate eligibility for the
health-based compliance alternative for total selected metals (TSM) are
still subject to the MACT TSM emission limit and operating and
monitoring requirements in the final rule (subpart DDDDD of 40 CFR part
63) except that they may demonstrate compliance with the TSM emission
limit based on the sum of emissions for seven metals, instead of the
eight selected metals, by excluding manganese emissions.
The methodology and criteria for affected sources to use in
demonstrating eligibility for the health-based compliance alternatives
were promulgated in appendix A to subpart DDDDD of 40 CFR part 63. (See
69 FR 55282-55286.) Appendix A specifies the process units and
pollutants that must be included in the eligibility demonstration, the
emissions testing methods, the criteria for determining if an affected
source is eligible, the risk assessment methodology (look-up table
analysis or site-specific risk analysis), the contents of the
eligibility demonstration, the schedule for submission of the self-
certified eligibility demonstrations, and the methods for ensuring that
an affected source remains eligible.
For an affected source to be eligible for the health-based
compliance alternatives, it must submit a signed certification that the
demonstration is an accurate depiction of the affected facility.
Thereafter, it must have federally enforceable conditions reflecting
the parameters used in the eligibility demonstration incorporated into
its title V permit to ensure that it remains eligible.
Following promulgation of the final rule, the Administrator
received petitions for reconsideration pursuant to section 307(d)(7)(B)
of the CAA from the Natural Resources Defense Council (NRDC),
Environmental Integrity Project (EIP), and General Electric (GE).\1\
Under this provision, the Administrator is to initiate reconsideration
proceedings if the petitioner can show that it was impracticable to
raise an objection to a rule within the public comment period or that
the grounds for the objection arose after the public comment period.
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\1\ In addition to the petitions for reconsideration, two
petitions for judicial review of the final rule were filed with the
U.S. Court of Appeals for the District of Columbia by NRDC, Sierra
Club, and EIP (No. 04-1385, D.C. Cir.) and American Municipal
Power--Ohio and the Ohio cities of Dover, Hamilton, Orrville,
Painesville, Shelby, and St. Marys (No. 04-1386, D.C. Cir.). The two
cases have been consolidated. Eleven additional parties have filed
petitions to intervene: American Home Furnishings Alliance, Council
of Industrial Boiler Owners, American Forest and Paper Association,
American Chemistry Council, National Petrochemical and Refiners
Association, American Petroleum Institute, National Oilseed
Processors Association, Coke Oven Environmental Task Force, Utility
Air Regulatory Group, and Alliance of Automobile Manufacturers are
intervening with regard to the health-based compliance alternatives.
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NRDC and EIP initially requested that EPA reconsider seven issues
reflected in the final rule that they believe could not have been
practicably addressed during the public comment period. EIP also filed
a supplement to this petition which raised additional issues for
reconsideration. Together, NRDC and EIP have requested reconsideration
of the following issues: (1) The adoption of ``no control'' MACT floors
for certain subcategories and pollutants; (2) establishing risk-based
alternatives on a plant-by-plant basis; (3) the presence of health
thresholds for HCl and manganese; (4) consideration of background
pollution and co-located emission sources; (5) establishing a health-
based compliance alternative for a pollutant (HCl) that serves as a
surrogate for other inorganic pollutants; (6) promulgating a health-
based compliance alternative that allows low-risk sources of manganese
emissions to comply with the MACT limitations for metals without
counting manganese; (7) the procedures for demonstrating compliance
with the health-based alternatives; (8) consideration of emissions
during periods of startup, shutdown, malfunction and (9) the cost-
effectiveness of the health-based alternatives. The NRDC and EIP
petition also requested that EPA stay the effectiveness of the health-
based compliance alternatives pending reconsideration.
By letters dated January 28, 2005, we informed NRDC and EIP that we
intended to grant their joint petition for reconsideration. We
indicated in those letters that we would respond to the petitions by
publishing this document.
III. Today's Action
A. Grant of Reconsideration
Today, we are granting reconsideration of several of the issues
raised in the NRDC and EIP petition for reconsideration. As a result,
we are requesting comment on certain provisions in appendix A of
subpart DDDDD of 40 part 63 and the health-based compliance alternative
for total selected metals reflected in Sec. 63.7507(b) of the final
rule. We are continuing to review the issue raised by GE with respect
to the emissions averaging provision of the final rule and are not
[[Page 36910]]
taking action on that petition at this time.\2\
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\2\ GE requested reconsideration of the emissions averaging
provisions of the final rule to address how this provision might
apply in the context of emissions units that vent to a single stack.
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Nearly all of the issues on which NRDC and EIP request
reconsideration relate to the health-based compliance alternatives
adopted in the final rule. Although we believe these aspects of the
final rule are properly supported and justified, we recognize that the
public may not have had the opportunity to comment on each of the
implementation requirements for these alternatives that are reflected
in the final rule because they were not completely developed by EPA at
the time of the proposed rule. Section IV discusses the issues for
which we are soliciting comment, including the methodology and criteria
for demonstrating eligibility for the health-based compliance
alternatives, the tiered risk assessment approach, look-up tables,
site-specific risk assessment, background concentrations and emissions
from other sources, submission deadlines, and the health-based
compliance alternative for metals.
We are not reconsidering the remaining issues raised by NRDC and
EIP because we believe we provided clear notice and a full opportunity
to comment on these aspects of the final rule. We proposed ``no
emissions control'' floors in our January 2003 action and received
comments on this issue. (See 68 FR 1672-1678; 69 FR 55233; RTC
Memorandum at 78-79.) We also proposed to establish plant-by-plant
health-based alternatives under the authority of section 112(d)(4) of
the CAA and thoroughly explained why this action is legally permissible
in response to comments on this issue (69 FR 55239-44). (See also RTC
Memorandum at 185-269.) Likewise, we proposed health-based compliance
alternatives for HCl and proposed using HCl as a surrogate to regulate
other inorganic pollutants. (See 68 FR 1671, 1692.) We received and
responded to comments raising concerns about combining these two
concepts in the rule, as proposed, and addressed this issue when we
developed appendix A to subpart DDDDD. (See 69 FR 55243-55244.) We
identified the Integrated Risk Information System (IRIS) reference
concentrations for HCl and manganese in the notice of proposed
rulemaking (68 FR 1690). These values were established through a
process conducted by EPA's Office of Research and Development in which
there was opportunity for public participation (e.g., 58 FR 11490
(February 25, 1993). The IRIS process is a rigorous scientific process
which includes internal peer review, external scientific peer review
combined with public notice, and often includes outside peer
consultation to support the development of dose-response knowledge.
Commenters also had an opportunity to address our treatment of
emissions during periods of startup, shutdown, and malfunction and the
cost-effectiveness of the proposed rule. We received and responded to
several comments regarding startup, shutdown, and malfunction plans.
(See RTC at 144-155 (section 12)). We assessed the costs and benefits
of the final rule in the preamble to the final rule (69 FR 55245-55247)
and the supporting documentation ``Regulatory Impact Analysis for the
Final Industrial, Commercial, and Institutional Boilers and Process
Heaters MACT'' that was included in the docket.
B. Request for Stay of Health-Based Alternatives
We are not granting the request by NRDC and EIP for a stay of the
health-based compliance alternatives. Under section 307(b)(1) and
307(d)(7)(B) of the CAA, the effectiveness of our final rules is not
automatically postponed by our granting of a petition for
reconsideration on certain issues. However, the Administrator has the
discretion to stay such rules pending reconsideration for a period not
to exceed 3 months.
We do not believe it is necessary in this instance to stay the
health-based compliance alternatives. Although we have decided to
reconsider certain aspects concerning the implementation of these
alternatives, we do not have reason to believe that approaches
reflected in these provisions are erroneous. We regard these aspects of
the final rule as a reasonable exercise of our discretion and authority
under the CAA that will reduce compliance costs for sources.
The public health is not endangered by the continued effectiveness
of the health-based compliance alternatives during the reconsideration
process. A facility cannot invoke this alternative compliance option
unless it demonstrates to the appropriate permitting authority that its
emissions exhibit characteristics that EPA believes do not pose
significant risk to the surrounding population. In addition, the
compliance date for existing sources is in 2007, so the health-based
compliance alternatives will not be applied to such sources
immediately.
Finally, we intend to complete our reconsideration of the final
rule expeditiously. Any uncertainty that may be created by our partial
granting of these petitions for reconsideration will be short-lived.
Thus, at this time we do not propose to change the compliance date
for the final rule or the date for submittal of health-based
eligibility demonstrations. However, we request comment on whether, in
light of the time required to complete this reconsideration action, we
should adjust the timetable for submission of these eligibility
determinations.
IV. Discussion of Issues Subject to Reconsideration
Stakeholders who would like for us to reconsider comments relevant
to those issues that they submitted to us previously should identify
the relevant docket entry numbers and page numbers of their comments to
facilitate expeditious review during the reconsideration process. We
plan to take final action on today's reconsideration as expeditiously
as possible.
A. Methodology and Criteria for Demonstrating Eligibility for the
Health-Based Compliance Alternatives
In the final rule, we established emissions limitations for
particulate matter (PM), TSM, HCl, mercury, and carbon monoxide based
on MACT. These limitations are set forth in table 1 to subpart DDDDD.
In addition, based on section 112(d)(4) of the CAA, we also established
health-based compliance alternatives to the HCl and TSM emissions
limitations, which are set forth in Sec. 63.7507 of subpart DDDDD.
Under these alternatives, an affected source that qualifies may
demonstrate compliance with a health-based HCl equivalent allowable
emission limit instead of the emissions limitation for HCl set forth in
table 1. For TSM, an affected source that qualifies may demonstrate
compliance with the emission standard for TSM in the final rule based
on the sum of emissions for the seven selected metals, excluding
manganese emissions from the summation of TSM emissions for the
affected source.
In our notice of proposed rulemaking, we described approaches that
we might use to implement an applicability cutoff for threshold
pollutants based on section 112(d)(4) of the CAA. (See 68 FR 1689-
1692.) We discussed establishing the applicability cutoffs using a
target organ specific HI, which is the sum of the individual hazard
quotients (HQ) for pollutants that affect the same target organ or
system. A HQ is the ratio of the level of exposure for a single
substance over a specified time period to a reference level (e.g.,
EPA's reference
[[Page 36911]]
concentration, or RfC) for that substance derived for a similar
exposure period. The RfC is an estimate of a continuous inhalation
exposure or a daily exposure to the human population (including
sensitive subgroups) that is likely to be without an appreciable risk
of deleterious non-cancer effects during a lifetime. (See 69 FR 1689.)
In addition, we discussed the possibility of developing a series of
simple look-up tables that a facility could use to determine whether
emissions from a source might cause a hazard index limit to be
exceeded. (See 69 FR 1691.) In addition, we also discussed the
possibility that a facility that did not pass the look-up table
analysis might be able to demonstrate that the facility does not exceed
the HI limit by conducting a more site-specific and resource-intensive
analysis using EPA-approved modeling procedures. (See 69 FR 1691.)
In the final rule, we established procedures for demonstrating
eligibility for the health-based compliance alternatives and codified
them in appendix A of subpart DDDDD. These procedures are summarized in
the preamble to the final rule (69 FR 55227-55228). The preamble to the
final rule also contained a summary of our response to significant
comments. (See 69 FR 55239-55244.)
We are requesting comment on specific aspects of the methodology
reflected in appendix A, as discussed in more detail in the following
sections.
B. Tiered Risk Assessment Methodology
As noted above, appendix A to subpart DDDDD employs a tiered
analytical approach to determine whether a facility is eligible for the
health-based compliance alternatives. We explained in our notice of
proposed rulemaking that a tiered analysis involves making successive
refinements in modeling methodologies and input data such that
increasing levels of refinement require more site-specific data and
are, therefore, less likely to overestimate risks. (See 68 FR 1691.)
Additionally, in our notice of proposed rulemaking, we indicated
that EPA guidance could provide the basis for conducting a tiered
analysis. (See 68 FR 1691.) Such guidance may be found in the document
``A Tiered Modeling Approach for Assessing the Risks due to Sources of
Hazardous Air Pollutants,'' EPA-450/4-92-001 that we referenced in a
footnote. Although it was clearly referenced in the proposal, we
inadvertently failed to place this document in the docket for the
proposed rulemaking. It is now in the docket.
Appendix A describes a tiered approach where sources can utilize
the health-based alternative compliance options by performing either a
look-up table analysis or a more detailed site-specific analysis. Thus,
a source would start with a modeling strategy that requires very little
site-specific data and makes health-protective assumptions (e.g. look-
up tables). At more refined tiers, the assessment becomes more
realistic (e.g. less likely to overestimate risks) but it requires more
site-specific data and possibly more sophisticated models. Thus, higher
tier assessments result in a more realistic assessment of risk but
require more data and are more labor intensive to conduct.
In the implementation of this approach in the final rule, we did
two things: (1) We created look-up tables specific to this source
category, eliminating the need to use the generic look-up table in the
proposed reference, and (2) we referred the user requiring more refined
tiers of analysis to our recently published Air Toxics Risk Assessment
Reference Library, Volume 2, Facility-specific Assessment, a document
which builds off the earlier EPA guidance document (the one referenced
in the proposal), implementing the tiered approach in the context of a
facility-specific risk assessment for air toxics. Both of these
documents endorse the assessment of air toxics risks using a tiered,
iterative approach, and that has been the preferred approach ever since
it was endorsed by the National Academy of Sciences in their report,
``Science and Judgment in Risk Assessment,'' NRC press, 1994.
In response to the concerns expressed by the petitioners, we have
entered the document ``A Tiered Modeling Approach for Assessing the
Risks Due to Sources of Hazardous Air Pollutants'' into the docket for
public review. We request comment on the use of a tiered analysis in
appendix A and the application in this case of the principles set forth
in the aforementioned document.
C. Look-Up Tables
In the notice of proposed rulemaking, for the first tier of a risk
assessment analysis for threshold pollutants, we proposed to develop a
series of simple look-up tables based on the results of air dispersion
modeling using conservative input assumptions. We proposed to create
tables using a limited number of parameters (such as stack height,
distance to property line, and emissions rate) that could be used to
easily determine whether emissions from a source might cause a HI limit
to be exceeded. (See 68 FR 1691.)
In the final rule, we promulgated specific look-up tables for HC1
and manganese that provide allowable emissions rate values for several
combinations of stack heights and distances to a property boundary.
(See 69 FR 55286.) A source is eligible for the compliance alternatives
if its calculated emission rate does not exceed the appropriate value
in the look-up table.
We developed the look-up tables for hydrogen chloride and manganese
in appendix A to subpart DDDDD using the health-protective SCREEN3 air
dispersion model. A description of the method we used to develop the
look-up tables is set forth in a memorandum in the docket entitled
``Development of Central Nervous System and Respiratory System Look-up
Tables for Industrial Boilers.'' We ran dispersion models using health-
protective assumptions that we believe are appropriate for a screening
analysis such as the one set forth in appendix A to subpart DDDDD.
The look-up table for HCl was developed based on an evaluation of
not just HCl, but all acid gas and respiratory HAP. Likewise, the look-
up table for manganese was developed based on an assessment of not just
manganese emissions, but all central nervous system HAP emissions.
We used average stack height because, based on available stack
height information for several facilities, we found that the stacks
heights of multiple solid fuel units at a given facility are generally
similar. In light of this finding and health-protective assumptions
built into the look-up tables, we believe that using average stack
height will not understate the risks posed by each source.
We request comment on the look-up tables and the methodology used
to develop them. This includes our use of average stack heights, the
derivation of different look-up table values based on distance from the
property line, and the use of conservative assumptions to account for
other variables such as meteorology.
D. Site-Specific Risk Assessment
If a facility cannot show eligibility for a compliance alternative
based on the look-up table, it may conduct a more refined site-specific
risk assessment in accordance with section 7 of appendix A to subpart
DDDDD. (See 69 FR 55283.) Under this approach, a facility must use any
scientifically-defensible, transparent and peer-reviewed assessment
methodology to determine risk from the facility. The facility is
eligible for the alternative compliance
[[Page 36912]]
option if the site-specific risk assessment shows that the maximum HI
(or HQ) from the affected sources at the facility is less than or equal
to 1.0.
An example of site-specific modeling performed in accordance with
the principles set forth in appendix A to subpart DDDDD is described in
the EPA ``Air Toxics Risk Assessment Reference Library'' which is
referenced in section 7 of appendix A. The library includes examples of
how to estimate inhalation exposures and other parameters.
Our approach in appendix A to subpart DDDDD is based on the general
air toxics risk assessment approach presented in EPA's Residual Risk
Report to Congress (available at http://www.epa.gov/ ttn/oarpg/ t3/
reports/ risk-- rep.pdf). The Air Toxics Risk Assessment Reference
Library has been peer-reviewed and was developed according to the
principles, tools and methods outline in the Residual Risk Report to
Congress.
For accuracy, a facility is required to use site-specific and
quality-assured data whenever possible. Selection of site-specific
input parameters is the essence of this site-specific demonstration. As
a result, section 7(c)(5) of appendix A to subpart DDDDD requires
adequate documentation for all inputs and assumptions.
We request comment on the approach for conducting a site-specific
risk assessment and the criteria set forth in section 7 of appendix A
to subpart DDDDD.
E. Background Concentrations and Emissions From Other Sources
In our notice of proposed rulemaking, we discussed using a HI to
identify the applicability cutoff for a standard for threshold
pollutants based on section 112(d)(4) of the CAA. (See 68 FR 1689-
1691.) One option that we discussed was using a HI of 1.0. (See 68 FR
1691.) A second option that we discussed was using a HI of less than
1.0, such as 0.2, which would reflect an assumption that 20 percent of
individual's total exposure comes from a particular source, and that 80
percent of the exposure would result from background concentrations of
pollutants resulting from other sources. We also discussed the option
of using available data from scientific literature to determine a
background concentration. (See 68 FR 1691.)
In the final rule, we decided to employ a HI or HQ of 1.0 as the
applicability cutoff for the assessments performed via appendix A to
subpart DDDDD. The look-up tables included in appendix A were developed
based on an HI of 1.0 for HCl and chlorine, and an HQ of 1.0 for
manganese. For a site-specific compliance demonstration under section 7
of appendix A, a source must demonstrate that the subpart DDDDD, 40 CFR
part 63, units at the facility are not expected to cause an individual
chronic inhalation exposure from HCl and chlorine that exceeds an HI of
1.0 or an individual chronic inhalation exposure from manganese which
could exceed an HQ of 1.0.
We concluded that an HI (or HQ) limit of 1.0 was appropriate for
the CAA section 112(d)(4) demonstration for the boiler and process
heater source category because the RfCs that are used to calculate the
HI and HQ are developed to protect sensitive subgroups and to account
for scientific uncertainties. We believe this ensures that a HI limit
of 1.0 provides an ample margin of safety. (See RTC Memorandum at 253.)
Additionally, we decided not to consider the impact of non-boiler-
related background emissions in the implementation of the health-based
compliance alternatives for HCl and manganese, indicating instead our
intent to assess facility-wide emissions of HAP in future residual risk
actions under section 112(f)(2) of the CAA, to the extent it is
appropriate and reasonable to do so. (See RTC Memorandum at 253.)
Although we indicated that one option for addressing background
emissions was to utilize an HI of 0.2, we did not intend to suggest
that this was the only reasonable approach for addressing the potential
risk from background emissions. After evaluating comments on this
issue, we are satisfied that an HI or HQ of 1.0 is appropriate.
To ensure that we receive input from members of the public that
wish to be heard, we are requesting comment on our approach. We also
request comment on deferring any further consideration of background
and co-located sources until we assess facility-wide emissions of HAP
in future residual risk actions under section 112(f)(2) of the Clean
Air Act.
F. Health-Based Compliance Alternative for Metals
The final regulations in subpart DDDDD include a health-based
compliance alternative for TSM in Sec. 63.7507(b). Applicability for
this alternative is determined on the basis of the levels of emissions
of manganese from affected sources, in accordance with appendix A to
subpart DDDDD. A source that demonstrates eligibility for this health-
based alternative is permitted to exclude manganese from its
calculation of TSM to show compliance with the emissions limitations in
table 1 to subpart DDDDD. Thus, under the health-based alternative for
TSM, the source is in compliance with subpart DDDDD of 40 CFR part 63
if the total emissions of seven metals (rather than eight) meet the
emissions limitations for TSM in table 1 to subpart DDDDD.
In the notice of proposed rulemaking (68 FR 1689), we proposed to
establish an applicability cutoff for threshold pollutants under
section 112(d)(4) of the CAA. We listed dose-response assessment values
for the HAP emitted by the boiler and process heater source category.
(See 68 FR 1690, table 4.) The table listing these values included the
reference concentrations for several pollutants, including manganese.
Although we specifically proposed in the preamble to the notice of
proposed rulemaking to establish an applicability cutoff for HCl under
section 112(d)(4) of the CAA, we intended to request comment on using
this approach for all threshold pollutants. Indeed, we received several
comments that addressed additional pollutants besides HCl, including
manganese. (See RTC Memorandum and Docket ID No. OAR-2002-0058.) Based
on these comments and our analysis, we concluded in the final rule that
it was appropriate to include a health-based compliance alternative for
manganese as well. Because manganese is one of the HAP metals emitted
by sources in the boilers and process heaters category, we promulgated
a health-based alternative emissions limitations for TSM.
To establish the health-based alternative emissions limitations for
TSM, we performed the same MACT floor analysis as was conducted, and
described in the proposal preamble, for the proposed TSM emission
limit. This approach is described in the memorandum ``Revised MACT
Floor Analysis for the Industrial, Commercial, and Institutional
Boilers and Process Heaters National Emission Standards for Hazardous
Air Pollutants Based on Public Comments'' and appendix C-2 to that
memorandum, which is contained in the docket.
We request comment on both the appropriateness of adopting a
health-based compliance alternative for manganese and, under this
alternative, using the same TSM emission limit in table 1 to subpart
DDDDD as a limitation for seven metals, while excluding manganese from
the calculation.
G. Deadline for Submission of Health-Based Applicability
Determinations.
Under section 9(a) of appendix A to subpart DDDDD, existing sources
must submit their eligibility demonstration to
[[Page 36913]]
a permitting authority no later than the date 1 year prior to the
compliance date of subpart DDDDD. Pursuant to Sec. 63.7495(b) of the
subpart DDDDD, the compliance date for existing sources is September
13, 2007. Thus, existing sources must submit their compliance
demonstrations under appendix A by September 13, 2006.
Several representatives of the regulated industry have expressed
concern that EPA's reconsideration of certain aspects of appendix A to
subpart DDDDD will make it difficult to make the eligibility
demonstration by September 13, 2006. These parties are concerned that
the uncertainty created by this reconsideration action will make it
difficult to complete an eligibility demonstration by September 13,
2006.
EPA does not believe that this reconsideration action makes it
necessary to provide regulated sources with more time to prepare their
eligibility demonstrations. Sources should proceed to prepare their
eligibility demonstrations under the existing process promulgated in
the final rule. We believe that the existing process in appendix A is
supported by the record, and do not at this time have reason to believe
changes will be necessary.
To the extent we determine, based on comments submitted in response
to this action, that changes are needed to appendix A to subpart DDDDD,
we will evaluate whether, based on the significance of any change,
additional time is needed.
However, we will also need to consider the competing considerations
which lead us to establish this date 1 year before the compliance date
in the first instance. We believe 1 year is necessary in order to
provide permitting authorities with enough time to evaluate the
eligibility demonstrations and sources with enough time to comply with
the MACT emissions limitations, if their eligibility demonstration is
not accepted.
Based on section 112(i)(3)(A) of the CAA, which states that EPA
cannot establish a compliance date later than 3 years after the
effective date of the final rule, we do not believe we are authorized
to extend the compliance date for existing sources beyond September 13,
2007. However, under section 112(i)(3)(B) of the CAA, permitting
authorities may be authorized to grant up to 1 additional year to
comply where a source can demonstrate that such time is necessary for
the installation of controls.
Thus, we do not believe it is appropriate at this time to propose
any adjustment to the deadline for submitting eligibility
demonstrations. However, because of the concern over this timing, we
request comment on whether we should or should not extend the deadline
for submission of eligibility demonstrations in light of this
reconsideration action.
H. What Are the Proposed Corrections to the Health-based Compliance
Alternatives?
We made an error in Sec. 63.7507(a) and the title of appendix A to
subpart DDDDD that has caused confusion regarding the intended
applicability of the health-based compliance alternative. As indicated
in Sec. 63.7507(b) and the text of appendix A, the health-based
compliance alternatives, both for HCl and TSM, were intended to be
applicable to any affected source subject to the HCl and TSM emission
limits in table 1 to subpart DDDDD. In Sec. 63.7507(a) and in the
title of appendix A, we erroneously stated that the health-based
compliance alternatives were only for the large solid fuel subcategory.
Large solid fuel units are the main subcategory potentially affected by
the health-based compliance alternatives but they are not the only
subcategory having applicable HCl and TSM emission limits. We corrected
that error by deleting the words ``for large solid fuel boilers located
at a single facility'' from Sec. 63.7507(a) and deleted the words
``Specified for the Large Solid Fuel Subcategory'' from the title of
appendix A.
These proposed corrections are intended to clarify, but not change,
the coverage of the final rule. The corrections will not affect the
estimated emissions reductions or the control costs for the final rule.
The clarifications and corrections should make it easier for owners and
operators and for local and State authorities to understand and
implement the requirements.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and,
therefore, subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive Order
defines a ``significant regulatory action'' as one that is likely to
result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that today's notice of reconsideration is a ``significant
regulatory action'' because it raises novel legal or policy issues. As
such, the action was submitted to OMB for review under Executive Order
12866. Changes made in response to OMB suggestions or recommendations
are documented in the public record (see ADDRESSES section of this
preamble).
B. Paperwork Reduction Act
The information collection requirements in the final rule were
submitted for approval to OMB under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. (Information Collection Request
No. 2028.01). The information collection requirements are not
enforceable until OMB approves them.
Today's notice of reconsideration imposes no new information
collection requirements on the industry. Because there is no additional
burden on the industry as a result of the notice of reconsideration,
the information collection request (ICR) has not been revised.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information
[[Page 36914]]
unless it displays a currently valid OMB control number. The OMB
control numbers for EPA's regulations are listed in 40 CFR part 9 and
48 CFR chapter 15.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions.
For purposes of assessing the impacts of today's notice of
reconsideration on small entities, a small entity is defined as: (1) A
small business having no more 500 to 750 employees, depending on the
business' NAICS code; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and that is not dominant in its field.
After considering the economic impacts of today's notice of
reconsideration on small entities, we certify that the notice will not
have a significant economic impact on a substantial number of small
entities. The EPA has determined that none of the small entities will
experience a significant impact because the notice of reconsideration
imposes no additional regulatory requirements on owners or operators of
affected sources.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least-burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least-
costly, most cost-effective, or least-burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed,
under section 203 of the UMRA, a small government agency plan. The plan
must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of EPA's regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
The EPA has determined that today's notice of reconsideration does
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any 1 year. Although the final rule
had annualized costs estimated to range from $690 to $860 million
(depending on the number of facilities eventually demonstrating
eligibility for the health-based compliance alternatives), today's
notice of reconsideration does not add new requirements that would
increase this cost. Thus, today's notice of reconsideration is not
subject to the requirements of sections 202 and 205 of the UMRA. In
addition, EPA has determined that today's notice of reconsideration
does not significantly or uniquely affect small governments because it
contains no requirements that apply to such governments or impose
obligations upon them. Therefore, today's notice of reconsideration is
not subject to section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
Today's notice of reconsideration does not have federalism
implications. It will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
None of the affected facilities are owned or operated by State
governments, and the requirements discussed in today's notice will not
supersede State regulations that are more stringent. Thus, Executive
Order 13132 does not apply to today's notice of reconsideration.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.''
Today's notice of reconsideration does not have tribal
implications. It will not have substantial direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175. No affected facilities are owned or operated by
Indian tribal governments. Thus, Executive Order 13175 does not apply
to today's notice of reconsideration.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant,'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned
[[Page 36915]]
rule on children and explain why the planned regulation is preferable
to other potentially effective and reasonably feasible alternatives
considered by EPA.
Today's notice of reconsideration is not subject to the Executive
Order because EPA does not have reason to believe that the
environmental health or safety risks associated with the emissions
addressed by this document present a disproportionate risk to children.
This demonstration is based on the fact that the noncancer human health
values we used in our analysis at promulgation (e.g., reference
concentrations) are determined to be protective of sensitive
subpopulations, including children. Also, while the cancer human health
values do not always expressly account for cancer effects in children,
the cancer risks posed by facilities that meet the eligibility criteria
for the health-based compliance alternatives will be sufficiently low
so as not to be a concern for anyone in the population, including
children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
Today's notice of reconsideration is not a ``significant energy
action'' as defined in Executive Order 13211 (66 FR 28355, May 22,
2001) because it is not likely to have a significant adverse effect on
the supply, distribution, or use of energy. Further, we conclude that
today's notice of reconsideration is not likely to have any adverse
energy effects.
I. National Technology Transfer and Advancement Act
As noted in the final rule, section 12(d) of the National
Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No.
104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus
standards in their regulatory and procurement activities unless to do
so would be inconsistent with applicable law or otherwise
impracticable. Voluntary consensus standards are technical standards
(e.g., material specifications, test methods, sampling procedures,
business practices) developed or adopted by one or more voluntary
consensus bodies. The NTTAA requires EPA to provide Congress, through
the OMB, with explanations when EPA decides not to use available and
applicable voluntary consensus standards.
During the development of the final rule, EPA searched for
voluntary consensus standards that might be applicable. The search
identified three voluntary consensus standards that were considered
practical alternatives to the specified EPA test methods. An assessment
of these and other voluntary consensus standards is presented in the
preamble to the final rule (69 FR 55251, September 13, 2004).
Today's notice of reconsideration does not propose the use of any
additional technical standards beyond those cited in the final rule.
Therefore, EPA is not considering the use of any additional voluntary
consensus standards for this document.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: June 20, 2005.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble, title 40, chapter 1, of the
code of Federal Regulations is proposed to be amended as follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart DDDDD--[Amended]
2. Section 63.7507 is amended by revising paragraph (a) to read as
follows:
Sec. 63.7507 What are the health-based compliance alternatives for
the hydrogen chloride (HCl) and total selected metals (TSM) standards?
(a) As an alternative to the requirement to demonstrate compliance
with the HCl emission limit in table 1 to this subpart, you may
demonstrate eligibility for the health-based compliance alternative for
HCl emissions under the procedures prescribed in appendix A to this
subpart.
* * * * *
3. Appendix A to subpart DDDDD is amended by revising the heading
to read as follows:
Appendix A to Subpart DDDDD--Methodology and Criteria for Demonstrating
Eligibility for the Health-Based Compliance Alternatives
* * * * *
[FR Doc. 05-12662 Filed 6-24-05; 8:45 am]
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