[Southern Environmental Field Station]{.underline}

> PO Box 1391
>
> New Bern, North Carolina 28563-1391
>
> ph. 252-633-7351 Fax 252-633-7634

January 17, 2003

Mr. Rick Colyer

Emission Standards Division (C504-05)

U.S. EPA

Research Triangle Park, North Carolina 27711

<colyer.rick@epa.gov>

Air and Radiation Docket and Information Center

Attention Docket Number OAR-2002-0038

Part 63 General Provisions (Subpart A) and Section 112(j) Regulations
(Subpart B)

Litigation Settlement Amendments II

Mailcode 6102T

1200 Pennsylvania Avenue, NW

Washington, DC, 20460

**Re: Docket Number OAR-2002-0038** **National Emission Standards for
Hazardous Air Pollutants for Source Categories: General Provisions; and
Requirements for Control Technology Determinations for Major Sources in
Accordance with Clean Air Act Sections, Sections 112(g) and 112(j), 67
*Fed. Reg.* 72875 (Dec. 9, 2002)**

Dear Mr. Colyer:

Weyerhaeuser Company ("Weyerhaeuser") appreciates the opportunity to
comment on EPA's proposed amendments to the regulations implementing
Section 112(j) of the Clean Air Act. Weyerhaeuser is a forest products
company headquartered in Federal Way, Washington. It owns and operates
some fifty-two manufacturing facilities in the United States that either
currently are, or may become, subject to these rules. The comments
enclosed with this letter supplement comments provided by the Coalition
for Clean Air Implementation (CCAI) on behalf of the American Forest and
Paper Association (AF&PA) and other industry groups. Unless otherwise
noted, Weyerhaeuser concurs with the comments submitted by CCAI and
refers EPA to those comments for additional information.

Please contact me at 252-633-7351 with any questions regarding these
comments.

Sincerely,

![](media/image2.jpeg){width="1.8in" height="0.3590277777777778in"}

Stephen E. Woock

Federal Regulatory Affairs Manager,

Weyerhaeuser

***Summary:*** Although we believe that *no changes* should be made to
the deadline for submittal of part 2 applications, we understand that
EPA intends to pursue some modifications of this rule. To the extent
that changes are made, Weyerhaeuser supports EPA's decision to depart
from its original settlement agreement in *Sierra Club* v. *U.S.
Environmental Protection Agency*, No. 02--1135 (D.C. Circuit) which
would have imposed a deadline for all Part 2 applications of May 15,
2003 and instead adopt a phased approach along the lines in the proposed
rule. We object, however, to the proposed rule's provisions requiring
that startup, shutdown and malfunction plans be submitted to the
permitting authority, and offer clarification on the startup and
shutdown reporting. We address these issues in turn.

***Section 112(j) Part 2 Application Deadline Revisions:*** Weyerhaeuser
believes that a 24-month period between submittal of part 1 and part 2
Section 112(j) applications is the most appropriate time period, given
that part 2 applications are unlikely ever to be acted upon by state
permitting authorities. EPA has indicated, however, that it intends to
make changes to these deadlines in response to the Sierra Club lawsuit.
In comparing EPA's originally planned settlement with the proposal, we
support the proposed rule's phased deadlines for part 2 application
submittals. EPA's originally planned settlement with the Sierra Club
would have led to an extreme waste of resources. Facilities would have
been required to make significant investments to complete part 2 Section
112(j) applications by May 15^th^ of this year, even though those
applications would never have been acted upon by state permitting
authorities. In addition, state agencies would have been forced to
devote resources to the application process. Under the proposal, EPA has
established a new timeline for issuing MACT standards, which corresponds
to a separate settlement agreement in another Sierra Club lawsuit.
Facilities would only be required to submit a part 2 application if EPA
missed the new deadlines. Part 2 applications would be due 60 days after
the missed deadline. Weyerhaeuser's support for the proposal is
conditioned on EPA (1) streamlining part 2 application content,
(2) providing 60 day advance notice that it will miss a deadline, and
(3) ensuring that the part 2 application deadline can be changed if EPA
agrees to extend the issuance deadline for a MACT standard in the
settlement agreement that contains those deadlines.

***Section 112(j) Part 2 Application Content:*** We understand that EPA
intends to meet all of the deadlines for issuing MACT standards
contained in the settlement agreement. Nonetheless, we remain concerned
that, notwithstanding the Agency's best efforts, some of our facilities
will be required to file part 2 applications. Any part 2 applications
that are filed, however, are not likely to be acted upon by the state
permitting authorities. Instead, they will simply sit and await the
issuance of a final MACT standard for the source category, at which time
they will be discarded. Thus, the preparation and submittal of part 2
applications will, in all likelihood, be purely a paperwork exercise.
Accordingly, it is imperative that EPA clarify and constrain the content
of the part 2 application to ensure that sources expend a minimal amount
of resources.

EPA has solicited comment on the content of part 2 applications in light
of the burdens associated with filing these documents and the
probability that final rules will obviate the need for states to act
upon any such applicaton. EPA should interpret the existing rules and
should provide explicitly in the final rule regulatory language that (1)
sources can rely on a simple reference to a proposed MACT standard to
satisfy all part 2 application elements, making the MACT application a
simple, one-page submittal and (2) sources that do not wish to reference
a proposed MACT standard (due to concerns they may have with it) can
meet the part 2 application minimum elements by cross-referencing other
materials such as responses to Section 114 information requests, [^1]
Title V applications and permits, emission inventories and the like.

EPA's regulations implementing Section 112(j) explicitly provide that a
part 2 application is complete if it contains enough information to
*begin processing.* 40 CFR § 63.52(e)(3). Referencing a proposed MACT
standard clearly satisfies this requirement as does referencing
previously submitted documents containing the elements of a part 2
application listed in the rule. If additional information is required
when, and if, a state begins to work on a case-by-case MACT for a
particular source, the state has full authority to request the specific
information that it needs. In response to EPA's question in the proposal
whether sources should be required to submit controlled and uncontrolled
emission rates, we believe this should be deleted as a requirement and
made optional. In addition, EPA asks if it should retain the requirement
to submit information relevant to the MACT floor. MACT floor information
gathering is not the source's responsibility. Any such information
submittal should be at the source's option as it is not necessary to
begin processing an application. Finally, EPA suggests that emissions
testing might be required to provide emissions information. This is not
required in the current rule and should not be required in any new rule.

***Startup, Shutdown and Malfunction Changes:*** EPA proposes several
changes to the startup, shutdown and malfunction (SSM) provisions of the
General Provisions. These comments focus on the most burdensome of these
new requirements: the requirement for all sources to submit their SSM
plans, including any revisions to such plans, to the permitting
authority. We object to this proposal because it will be extremely
burdensome and is not required under the Clean Air Act or EPA's
regulations. We also request clarification of the proposed changes for
the startup and shutdown reporting requirements.

> ***Submittal of SSM Plans:*** EPA states in the preamble that all SSM
> plans must be made available to the public under 40 CFR
> § 70.4(b)(3)(viii) and Section 114(c) of the Clean Air Act. To the
> contrary, the cited provisions do not require SSM plans to be made
> publicly available. Section 70.4(b)(3)(viii) of the Title V
> regulations provides that the state must make available to the public
> any permit application, compliance plan, permit, and monitoring and
> compliance certification report. A SSM plan does not fall within any
> of the listed categories. Section 114(c) requires that any records,
> reports or information obtained by EPA under Section 114(a) must be
> available to the public, except for confidential business information.
> This means that the public is entitled only to that information *which
> EPA actually obtains*. It in no way requires the Administrator to
> obtain SSM plans from sources.

EPA explains in the preamble that it agreed to propose these changes to
respond to Sierra Club's expressed concern that "some permitting
authorities might not construe the rule to require that an SSM plan be
obtained from the affected source when it is requested by a member of
the public, and that the rule does not expressly require submission of
an SSM plan when the permitting authority or Administrator requests it."
67 *Fed. Reg.* 72880. First, it is appropriate for the Administrator and
the state to be the arbiters of when an SSM plan should be requested
from a source. If a member of the public requests such a plan, the state
and EPA should evaluate whether the plan is needed to assess compliance
of the source or whether such an assessment can be made by using the
current rule's provision allowing on-site inspection and copying of the
plan by the regulators. Providing mass access to all SSM plans creates
potential for abuse as well as concerns for confidential business
information protection as well as homeland security. That is why the
statute provides that EPA and the state make decisions regarding what
information is needed for compliance assessment. Second, Section 114(a)
provides EPA with the authority to issue an information request
compelling submittal of an SSM plan. Therefore, there is no concern that
a plan "could not be obtained" if the regulatory authorities decided it
was needed.

Given that there is no statutory or regulatory requirement to make these
plans available to the public on a mass basis, EPA should reject the
proposed rule and instead fulfill its duties to evaluate when it is
appropriate to request a given plan. EPA should explain in the preamble
to the final rule that, if a disclosure request is received, the
permitting authority should evaluate independently whether the
information is needed due to a question of the source\'s compliance
status.  This evaluation should be made by conducting a site inspection
and, if there is an issue with the plan, EPA or the state should either
copy the relevant *portions* of the plan or request that the source do
so.  Unless there is a specific reason related directly to compliance
that mandates obtaining the whole plan, wholesale requests for plans at
complex facilities should be discouraged.  When, and only when, the
state or EPA obtains a copy of plan elements, do the rules and statute
require that they be publicly available, with all CBI removed.

EPA's proposal to require submittal of all SSM plans and revisions will
be extremely burdensome to both our regulated sources and the permitting
authorities that are required to receive and maintain these plans. In
addition, it poses policy concerns related to maintaining the
confidentiality of trade secrets and creates potential homeland security
issues. The regulated community will be required to compile the SSM
plans (because we keep elements of the plan in various operating manuals
and at specific operating units throughout a facility), copy them and
send them to permitting authorities. The proposal further requires that
sources send any revisions to SSM plans to the permitting authorities.
EPA states that these plans can be sent in electronic format but, in
practice, it is likely that most would be sent in paper form. State
agencies will then be required to create "SSM plan libraries," pay for
storage of the plans and maintain up-to-date files with all revisions
*just in case* somebody requests to see a particular source's plan.
These costs cannot be justified.

The proposal also fails to address the burdens that will be imposed on
state permitting authorities to protect CBI. Much of the SSM plan
information will constitute CBI which the permitting authority will have
in its possession if all plans must be submitted. The task of managing
the documents to ensure that CBI is not inadvertently disclosed by a
state employee will be substantial. We are particularly concerned with
the ability of states to manage CBI and ensure its protection,
particularly given the volume of material involved under the proposed
rule. In addition, the sheer paperwork of maintaining the documents will
be costly for the state.

***Startup and Shutdown Reporting:*** EPA intended to change the MACT
general provisions in Section 63.10(d)(5)(i) that require each startup,
shutdown and malfunction be reported or described. We support EPA\'s
intentions in making this change. The malfunction provisions are
discussed in the previously noted CCAI comments, and we refer EPA to
those comments. Regarding startup and shutdown, the proposed change
would greatly reduce the amount of reporting required. However, the
changes to the language in the rule did not fully achieve this stated
aim.

Section 63.10(d)(5)(i) was changed from

> "\....Reports shall only be required if a startup, shutdown, or
> malfunction occurred during the reporting period, and they must
> include the number, duration, and a brief description of each
> **startup, shutdown, or malfunction**\...."

to

> "\....Reports shall only be required if a startup, shutdown, or
> malfunction occurred during the reporting period, and they must
> include the number, duration, and a brief description of each
> **malfunction**\...."

However, the complete text of 63.10(d)(5)(i) still appears to require
that each startup and shutdown must still be reported. The wording in
the sentence previous to the one changed requires that the SSM report
must contain information on whether the SSM plan was followed for each
startup and shutdown. This would appear to require that each startup and
shutdown be reported, changing only that the brief description of each
startup and shutdown would no longer be required. This is a very small
deletion, as currently facilities may described each SS with a one-line
statement that the unit started or shut down referencing which procedure
in the SSM plan was followed. With the new wording, it would be
shortened to indicate that an unspecified SSM procedure was followed. As
a practical matter, very little will change.

To meet EPA\'s intent of not reporting each startup and shutdown, the
rule language should be changed to say that only startups and shutdowns
that did not follow procedures in the SSM plan and/or affect the ability
of the affected source to meet the relevant standard, will be reported.
This will meet the needs of EPA and the permitting authority by not
cluttering the record with unnecessary reporting.

[^1]: Sources should not be required to update these responses. EPA has
    stated that a Section 112(j) determination should be the equivalent
    of the standard that EPA would have promulgated under Section
    112(d). Because the Section 112(d) standards are based on these same
    information requests, relying on these requests to establish the
    case-by-case MACT should lead to development of an equivalent
    standard. Requiring updating of such information requests to
    "current" information will impose huge administrative burdens on
    sources with no corresponding environmental benefit.